Original Notice.

Preproposal statement of inquiry was filed as WSR 00-20-061.

Title of Rule: Duties of shellfish buyers and redefining sea urchin and sea cucumber districts.

Purpose: Change sea urchin and sea cucumber districts to conform with negotiated management regimes with tribal comanagers and improve timeliness of catch reporting from buyers of sea urchins and sea cucumbers.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: Rule proposal will redefine sea urchin and sea cucumber districts consistent with contemporary usage and buyers of sea urchins and sea cucumbers will be required to report catches on the day following landing by phone or fax.

Reasons Supporting Proposal: The entry of the tribal comanagers into the sea urchin and sea cucumber fishery and the resultant negotiated management plans have altered the existing boundaries in practice - this necessitates emergency action rules on an annual basis to operate the fisheries under the plan. This rule will reduce the level of emergency actions required to implement these fisheries. In addition, the reduced sea urchin and sea cucumber quotas available to the nontribal fishers requires increased oversight on the rate of quota consumption to meet harvest levels for allocation and conservation requirements.

Name of Agency Personnel Responsible for Drafting: Morris Barker, 600 Capitol Way North, Olympia, WA 98501-1091, (360) 902-2826; Implementation: Lew Atkins, 600 Capitol Way North, Olympia, WA 98501-1091, (360) 902-2325; and Enforcement: Bruce Bjork, 600 Capitol Way North, Olympia, WA 98501-1091, (360) 902-2373.

Name of Proponent: Washington 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: Redefines sea urchin and sea cucumber district consistent with contemporary usage and existing management plans. The anticipated effect is to reduce the level of emergency actions required to implement these fisheries. The requirement for more rapid catch reporting from sea urchin and sea cucumber buyers will provide timely data for the management of the fisheries. The anticipated effect is to increase oversight capability on the rate of quota consumption to meet harvest levels for allocation and conservation requirements.

Proposal Changes the Following Existing Rules: See SBEIS below.

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: Unlikely that any would be required other than a wireless type of service provider.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: In the unlikely event that buyers do not have access to a fax machine or a phone the extra costs would be related to a fax machine or a cell phone. The cost of these items are easily obtainable in the market place for a cost of less than $500 through existing service providers (for the duration of the annual harvest seasons).

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 buyers have been using this type of reporting over the last three years so no new costs would likely accrue; however, if every buyer did have to incur these costs it would amount to 12.67 (annual average number of buyers) x $500 (maximum annual cost)= $6,335. Compare this cost to the average annual exvessel price of $1,067,719 paid to fishers by buyers (before buyer profit) and it becomes a small part of the operating expenses. It would become even a smaller portion if any buyer who buys sea urchins also buys sea cucumbers, i.e., the 12.67 (the annual average number of buyers) would decrease by one for each duplicate buyer occurrence.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The agency has been working with the fisher and buyer sides of the industry to develop the rapid reporting system to reduce their current and future economic risk in terms of lost sales or harvest opportunity. This approach has been acceptable to the industry.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The agency has been doing this by emergency order over the previous few years and has achieved broad acceptance within this sector of the business community. In addition, the department will be holding the public hearings with the industry under the auspices of the Fish and Wildlife Commission rule adoption process.

8. A List of Industries That Will Be Required to Comply with the Rule: Wholesale buyers of sea urchins and sea cucumbers.

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) 902-2942.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Not hydraulic rules.

Hearing Location: Best Western Hotel, 15901 West Valley Road, Tukwila, WA, on February 9-10, 2001, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by January 23, 2001, TDD (360) 902-2207, or (360) 902-2226.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2944, by February 8, 2001.

Date of Intended Adoption: February 9, 2001.

January 2, 2001

Evan Jacoby

Rules Coordinator

OTS-4616.1

AMENDATORY SECTION(Amending Order 00-07, filed 1/13/00, effective 2/13/00)

WAC 220-52-071   Sea cucumbers.   It is unlawful to take or possess sea cucumbers taken for commercial purposes except as provided for in this section.

(1) Sea cucumber districts:

(a) Sea Cucumber District 1 is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Areas 20A, 20B, 21A, 21B, 22A, 22B, and 23B outside of the following closed areas:

(i) San Juan Channel and Upright Channel within the following lines: ((North of a line from Cattle Point on San Juan Island to Davis Point on Lopez Island and)) South of a line projected from Flat Point on Lopez Island true west to Shaw Island; west of a line from Neck Point on Shaw Island to Steep Point on Orcas Island; south of a line from Steep Point on Orcas Island to Limestone Point on San Juan Island north of a line from Flat Point on Lopez Island to the northernmost point of Turn Island and thence projected true west to San Juan Island.

(ii) Haro Strait north of a line projected east-west one-half mile south of Eagle Point on San Juan Island and south of a line projected east-west one-quarter mile north of Lime Kiln Light on San Juan Island.

(((iii) Within one-quarter mile of Green Point on Spieden Island.

(iv) Within one-quarter mile of Gull Reef, located between Spieden Island and Johns Island.))

(b) Sea Cucumber District 2 is defined as ((those)) the waters of Marine Fish-Shellfish Management and Catch Reporting Areas 23A, 23C, 23D, 25A, 25B, 25C, 25D, 25E, and 29 ((and those waters west of the Bonilla-Tatoosh Line, Pacific Ocean waters, Grays Harbor, Willapa Bay, and the waters at the mouth of the Columbia River west of the Buoy 10 Line)).

(c) Sea Cucumber District 3 is defined as ((those)) the waters of Marine Fish-Shellfish Management and Catch Reporting Areas 24A, 24B, 24C, 24D, 26A, 26B, and 26C((, and 26D)).

(d) Sea Cucumber District 4 is defined as ((those)) the waters of Marine Fish-Shellfish Management and Catch Reporting Areas 27A, 27B, and 27C((, 28A, 28B, 28C, and 28D)).

(e) Sea Cucumber District 5 is defined as the waters of Marine Fish-Shellfish Management and Catch Reporting Areas 26D, 28A, 28B, 28C, and 28D.

(2) Sea cucumber areas and seasons:

Sea cucumber areas and seasons will be set by emergency rule.

(3) Shellfish diver gear:

(a) Divers operating from a vessel must have a number assigned by the department placed on both sides and the top of the vessel in such a manner that the number is clearly visible when the vessel is viewed from either side or from the air, and the letters must be black on white no less than eighteen inches in height and of proportional width.

(b) Only one diver from each harvesting vessel is allowed in the water at any one time during the sea cucumber harvest operation or when commercial quantities of sea cucumbers are aboard except that two divers may be in the water if the vessel has been designated on two sea cucumber dive fishery licenses.

(c) Divers may not fish for or possess geoduck clams during commercial sea cucumber harvesting operations, or possess geoduck clams on a vessel that has sea cucumbers on board.

(d) Licensing: A sea cucumber dive fishery license is the license required to operate the gear provided for in this section.

(4) Trawl gear:

It is unlawful to fish for or possess sea cucumbers taken with trawl gear.

[Statutory Authority: RCW 75.08.080. 00-03-042 (Order 00-07), 220-52-071, filed 1/13/00, effective 2/13/00; 99-17-068 (Order 99-126), 220-52-071, filed 8/13/99, effective 9/13/99; 94-12-009 (Order 94-23), 220-52-071, filed 5/19/94, effective 6/19/94; 93-15-051, 220-52-071, filed 7/14/93, effective 8/14/93; 91-18-030 (Order 91-73), 220-52-071, filed 8/28/91, effective 9/28/91; 91-10-024 (Order 91-22), 220-52-071, filed 4/23/91, effective 5/24/91; 87-23-006 (Order 87-187), 220-52-071, filed 11/6/87; 87-15-022 (Order 87-69), 220-52-071, filed 7/8/87; 87-02-013 (Order 86-199), 220-52-071, filed 12/30/86; 81-11-006 (Order 81-31), 220-52-071, filed 5/11/81; 79-02-053 (Order 79-6), 220-52-071, filed 1/30/79; Order 77-145, 220-52-071, filed 12/13/77; Order 77-65, 220-52-071, filed 8/5/77; Order 1105, 220-52-071, filed 12/28/73; Order 990, 220-52-071, filed 5/11/72.]

(1) Sea urchin districts:

(a) Sea Urchin District 1 (Northern San Juan Islands) is defined as Marine Fish-Shellfish Management and Catch Reporting Areas 20A, 20B, and those waters of Area 22A north of a line projected east-west one-quarter mile north of Lime Kiln Light on San Juan Island and west of a line projected true north from Limestone Point on San Juan Island. ((The following areas within Sea Urchin District 1 are closed to the harvest of sea urchins at all times:

(i) Those waters within one-quarter mile of Green Point on Spieden Island.

(ii) Those waters within one-quarter mile of Gull Reef, located between Spieden and Johns Island.))

(b) Sea Urchin District 2 (Southern San Juan Islands and Port Townsend) is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A south of a line projected east-west one-quarter mile north of Lime Kiln Light on San Juan Island and east of a line projected true north from Limestone Point on San Juan Island and Areas 21A, 21B, 22B, 23A, 23B ((and)), 25A and 25B. The following areas within Sea Urchin District 2 are closed to the harvest of sea urchins at all times:

(i) Those waters of Haro Strait north of a line projected east-west one-half mile south of Eagle Point on San Juan Island and south of a line projected east-west one-quarter mile north of Lime Kiln Light on San Juan Island.

(ii) Those waters of San Juan Channel and Upright Channel within the following lines: ((North of a line from Cattle Point on San Juan Island to Davis Point on Lopez Island;)) South of a line projected from Flat Point on Lopez Island true west to Shaw Island; west of a line from Neck Point on Shaw Island to Steep Point on Orcas Island; south of a line from Steep Point on Orcas Island to Limestone Point on San Juan Island north of a line from Flat Point on Lopez Island to the northernmost point of Turn Island and thence projected true west to San Juan Island.

(c) Sea Urchin District 3 (Port Angeles) is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 23C east of a line projected true north from Low Point, and Area 23D.

(d) Sea Urchin District 4 (Sekiu) is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 23C west of a line projected true north from Low Point and those waters of Area 29 east of a line projected true north from the mouth of Rasmussen Creek (3.1 miles southeast of Sail Rock).

(e) Sea Urchin District 5 is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 29 west of a line projected true north from the mouth of Rasmussen Creek (3.1 miles southeast of Sail Rock) and Areas 59A and 59B. Within Sea Urchin District 5, waters within one-quarter mile of Tatoosh Island are closed to the harvest of sea urchins at all times.

(2) Sea urchin seasons and sizes:

Sea urchin seasons and sizes will be set by emergency rule.

(3) Shellfish diver gear:

(a) It is unlawful to take sea urchins by any means other than shellfish diver gear.

(b) Divers may only use hand-operated equipment that does not penetrate the shell.

(c) Sea urchins may not be taken from water shallower than 10 feet below mean lower low water.

(d) Purple sea urchins may not be taken.

(e) Divers operating from a vessel must have a number assigned by the department, placed on both sides and the top of the vessel in such a manner that the number is clearly visible when the vessel is viewed from either side or from the air and the number must be black on white no less than 18 inches high and of proportionate width.

(f) Divers may not take sea urchins from one-half hour after sunset to one-half hour before sunrise.

(g) No processing of sea urchins is permitted aboard the harvest vessel.

(h) Divers may not take sea urchins for use other than as human food.

(i) Only one diver from each harvesting vessel is allowed in the water at any one time during the sea urchin harvesting operation or when commercial quantities of sea urchins are aboard except that two divers may be in the water if the vessel has been designated on two sea urchin dive fishery licenses.

(j) Variance from any of the provisions of this subsection is only allowed if authorized by a permit issued by the director.

(k) Licensing: A sea urchin dive fishery license is the license required to operate the gear provided for in this section.

[Statutory Authority: RCW 75.08.080. 00-03-042 (Order 00-07), 220-52-073, filed 1/13/00, effective 2/13/00; 94-12-009 (Order 94-23), 220-52-073, filed 5/19/94, effective 6/19/94; 91-22-064 (Order 91-132), 220-52-073, filed 11/1/91, effective 12/2/91; 91-10-024 (Order 91-22), 220-52-073, filed 4/23/91, effective 5/24/91; 87-23-006 (Order 87-187), 220-52-073, filed 11/6/87; 87-15-022 (Order 87-69), 220-52-073, filed 7/8/87; 86-20-028 (Order 86-123), 220-52-073, filed 9/23/86; 85-01-010 (Order 84-214), 220-52-073, filed 12/7/84; 83-04-025 (Order 83-04), 220-52-073, filed 1/27/83; 80-13-064 (Order 80-123), 220-52-073, filed 9/17/80; 79-02-053 (Order 79-6), 220-52-073, filed 1/30/79; Order 77-145, 220-52-073, filed 12/13/77; Order 76-152, 220-52-073, filed 12/17/76; Order 1105, 220-52-073, filed 12/28/73; Order 990, 220-52-073, filed 5/11/72.]

OTS-4593.2

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

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, firms, or individuals, regardless of whether or not the receiver or purchaser holds a license as required under Title ((75)) 77 RCW, 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. 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) 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) 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 except that a wholesale dealer purchasing fish from a commercial fisherman or shellfish gatherer shall complete the appropriate fish receiving ticket regardless of whether the commercial fisherman or shellfish gatherer possesses a wholesale dealer's license. It is the purchaser's responsibility to obtain the name, address, and Washington wholesale dealer's license 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) 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) Private sector cultured aquatic products.

(4) 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) 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) 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) 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 75 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) 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) 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) 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) 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. 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 1-800-902-9999

(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 1-800-902-9999

(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 (360) 249-4628 Ext. 270

(d) Columbia River summary reports must be reported by 12:00 noon on the day after the purchase date by either:

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

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

(iii) Telephone to 1-800-906-9999.

(12) 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 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.]

Washington State Code Reviser's Office