WSR 98-21-087

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[Filed October 21, 1998, 11:45 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-17-088.

Title of Rule: Designate green crab and mitten crab as deleterious exotic wildlife, and allow volunteers to possess deleterious exotic wildlife by permit.

Purpose: Add green crab and mitten crab to the list of deleterious exotic wildlife, and allow volunteers to assist the agency in monitoring and control programs.

Statutory Authority for Adoption: RCW 75.08.080.

Statute Being Implemented: RCW 75.08.080.

Reasons Supporting Proposal: The green crab and mitten crab have the potential to negatively impact aquatic ecosystems and the economy of Washington. Designating them as deleterious will increase our ability to protect the resource. The Washington Department of Fish and Wildlife does not have the financial resources to implement an effective monitoring and control program without volunteers and a permitting process is needed to allow trained volunteers to possess deleterious species under specific guidelines.

Name of Agency Personnel Responsible for Drafting: Scott Smith, 1111 Washington Street, Olympia, WA, (360) 902-2724; Implementation: Bruce Crawford, 1111 Washington Street, Olympia, WA, (360) 902-2325; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, (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: This amendment to WAC 232-12-017 Deleterious exotic wildlife, will allow the Washington Department of Fish and Wildlife to limit the possession of green crab and mitten crab to trained staff and volunteers, and thereby minimize the potential for spreading these species into new waters.

Proposal Changes the Following Existing Rules: This proposal makes amendments to WAC 232-12-017 Deleterious exotic wildlife, by adding green crab and mitten crab as deleterious exotic wildlife, and adds a new section that allows volunteers to possess deleterious exotic wildlife by permit.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This amendment does not affect small business. The proposed changes make it illegal to possess green crab and mitten crab without a permit.

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

Hearing Location: DoubleTree Hotel, 18740 Pacific Highway South, Seattle, WA, on December 4-5, 1998, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Robin Ayers by November 16, 1998, TDD (360) 902-2295, or (360) 902-2933.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA, fax (360) 902-2940, by December 3, 1998.

Date of Intended Adoption: December 5, 1998.

October 21, 1998

Evan Jacoby

Rules Coordinator

OTS-2618.1

AMENDATORY SECTION (Amending Order 582, filed 1/27/93, effective 2/13/93)

WAC 232-12-017 Deleterious exotic wildlife. (1) The following animals are hereby designated as deleterious exotic wildlife:

(a) Fish and shellfish

(i) In the family Claridae, (walking catfish) all members of the family.

(ii) In the family Cyprinidae, (diploid grass carp,) Ctenopharyngodon idella

(iii) In the family Amiidae, (bowfin, mudfish or grinnel) Amia calva

(iv) In the family Characidae, the piranha (also pirameba, caribe, pira, piraya, chupita, rodoleira, palometa), all species of the genera Serrasalmus, Rooseveltiella and Pygocentrus

(v) In the family Cyprinidae, the rudd (Scardinius erythropthalmus) and Ide (silver orfe or golden orfe (Leuciscus idus))

(vi) In the family Lepiosteidae, the gar-pikes

(vii) In the family Channidae, the snakeheads (China fish) and all forms of the genus Channa (Ophicephalus)

(viii) The European green crab (carcinus maenas)

(ix) Chineese mitten crab (all members of the genus Eriocheir)

(b) Amphibians

(i) In the family Pipidae, the African clawed frog (Xenopus laevis)

(i) In the family Anatidae, the mute swan (Cygnus olor)

(d) Mammals

(i) In the family Viverridae, the mongoose (all members of the genus Herpestes)

(ii) In the family Suidae, the wild boar((~~[,]~~)) (Sus scrofa and all wild hybrids)

(iii) In the family Tayassuidae, the collared peccary (javelina) (Tayassu tajacu)

(iv) In the family Bovidae, all members and hybrids of the following genera: Rupicapra (Chamois); Hemitragus (Tahr); Capra (goats, ibexes except domestic goat Capra (hircus); Ammotragus (Barbary sheep or Aoudad); Ovis (sheep), except domestic sheep Ovis aries; Damaliscus (Sassabies); Alcelaphus buselaphus (Hartebeest); Connochaetes (Wildebeests).

(v) In the family Cervidae, the European red deer (Cervus elaphus elaphus), all nonnative subspecies of Cervus elaphus, and all hybrids with North American elk; Fallow deer (Dama dama), Axis deer (Axix axis), Rusa deer or Sambar deer (Cervus unicolor, Cervus timorensis, Cervus mariannus and Cervus alfredi), Sika deer (Cervus Nippon), Reindeer (all members of the Genus Rangifer except Rangifer tarandus caribou), and Roedeer (all members of the Genus Capreolus).

(2) It is unlawful to import into the state, hold, possess, propagate, offer for sale, sell, transfer, or release live specimens of deleterious exotic wildlife, their gametes and/or embryo, except as provided under (3), (4), (5), (6), or (7) below.

(3) Scientific research or display: The director may authorize, by written approval, a person to import into the state, hold, possess, and propagate live specimens of deleterious exotic wildlife for scientific research or for display by zoos or aquariums who are accredited institutional members of the American Association of Zoological Parks and Aquariums (AAZPA) provided:

(a) The specimens are confined to a secure facility,

(b) The specimens will not be transferred to any other location within the state, except to other AAZPA accredited facilities with written director approval or as otherwise authorized in writing by the director,

(c) The specimens will be euthanized and all parts incinerated at the end of the project, except federally listed endangered or threatened species may be retained or transferred where in compliance with federal law,

(d) The person will keep such records on the specimens and make such reports as the director may require, and

(e) The person complies with other requirements of this section.

(4) Retention or disposal of existing specimens lawfully in captivity:

(a) Specimens lawfully in captivity prior to January 18, 1991: A person holding exotic wildlife specimens in captivity which were classified by the wildlife commission as deleterious exotic wildlife on or before January 18, 1991 may retain the specimens of such deleterious exotic wildlife such person lawfully possessed prior to January 18, 1991 provided such person complies with subsections (4)(c) through (4)(h) hereunder and the other requirements of this section:

(b) Specimens lawfully in captivity prior to June 20, 1992: A person holding the following deleterious exotic wildlife specimens in captivity which were classified by the wildlife commission as deleterious exotic wildlife by operation of emergency rule filed June 19, 1992 (in the family Bovidae, Sassabies (all member of the Genus Damaliscus), Hartebeest (Alcelaphus buselaphus), Wildebeests (all members of the Genus Connochaetes), Markhor (Capra falconeri), and Marcopolo sheep (Ovis ammon); in the family Cervidae, Fallow deer (Dama dama), Axis deer (Axis axis), Sika deer (Cervus Nippon), Rusa deer or Sambar deer (Cervus unicolor, Cervus timorensis, Cervus mariannus and Cervus alfredi)), may retain the specimens of such deleterious exotic wildlife such person lawfully possessed prior to June 20, 1992, and the lawful progeny thereof provided such person complies with subsections (4)(c) through (4)(h) hereunder and the other requirements of this section and except as provided under subsection (7).

(d) The specimens are confined to a secure facility at the location reported,

(e) Live specimens are not propagated, except at AAZPA accredited facilities with the written permission of the director or as otherwise authorized in writing by the director,

(f) Live specimens shall be neutered, physically separated by sex, and/or rendered infertile by means of contraception, except at AAZPA accredited facilities with the written permission of the director,

(g) Live specimens are not released,

(h) Live specimens are not sold or transferred except:

(i) Live specimens in lawful possession may be permanently removed from the state of Washington or transported directly to slaughter where in accordance with other applicable law,

(ii) Federally listed endangered or threatened species may be transferred to AAZPA accredited facilities where in compliance with federal law,

(iii) Live specimens may be moved to the new primary residence of the possessor with the written approval of the director, provided all other requirements are satisfied and the total number of locations where animals are held is not increased.

(iv) AAZPA facilities may sell and/or transfer live specimens within the state with the written permission of the director.

(5) Retention or disposal of existing specimens lawfully in captivity prior to February 13, 1993: A person holding exotic wildlife specimens in captivity which are newly classified by the Wildlife Commission as deleterious exotic wildlife by operation of this rule (([))(Reindeer (all members of the Genus Rangifer, except Rangifer tarandus caribou), and Roedeer (all members of the Genus Capreolus)((]))), may retain the specimens of such deleterious exotic wildlife such person lawfully possessed prior to February 13, 1993, provided:

(a) The person reports to the director in writing by March 31, 1993, and reports annually thereafter, or as otherwise required by the director, the species, number, and location of such specimens,

(b) The person complies with subsections (4)(d) through (4)(h) herein and the other requirements of this section.

(6) The provisions of this section shall not prohibit the importation, possession, propagation, sale, transfer, or release of live specimens of federally listed threatened or endangered species, their gametes and/or embryo, where in compliance with federal law.

(7) Notwithstanding the provisions of subsection (2), Fallow deer (Dama dama) and reindeer (all members of the Genus Rangifer, except Rangifer tarandus caribou) may be imported into the state, held, possessed, propagated, offered for sale, sold, and/or transferred provided:

(a) The person complies with subsection (4)(c) through (4)(g) hereunder and the other requirements of this section, except for subsections (4)(e), (4)(f), and (4)(h), and

(b) The person complies with department of agriculture WAC 16-54-035 as now or hereafter amended except:

(i) Animals which have resided at any time east of a line drawn through the eastern boundaries of North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and the 100th Meridian where it passes through Texas or have had contact with or shared common ground with animals which have resided at any time east of such line shall not be imported into the state of Washington, unless specifically authorized in writing by the directors of the department of agriculture and the department of wildlife.

(c) No specimens affected with any infectious or communicable disease shall be imported into the state unless in compliance with all applicable laws and regulations and unless written permission is obtained from the directors of the department of agriculture and the department of wildlife.

(d) The specimens are confined to a secure facility.

(e) Reindeer may not be imported into, held, or possessed in Ferry, Stevens, or Pend Oreille counties or that portion of Spokane County north of Spokane River.

(8) Escaped animals

(a) Escaped deleterious exotic wildlife, including Fallow deer (Dama dama), and Reindeer (all members of the Genus Rangifer, except Rangifer tarandus caribou) will be considered a public nuisance. The department or any peace officer may seize, capture, or destroy deleterious exotic wildlife that have escaped the possessor's control. The former possessor shall be responsible for costs incurred by the department in recovering, maintaining, or disposing of such animals, as well as any damage to the state's wildlife or habitat.

(b) Escapes of deleterious exotic wildlife must be reported immediately to the department.

(9) Secure facility

(a) All deleterious exotic wildlife will be held in a secure facility. For the purpose of this rule, a secure facility is an enclosure so constructed as to prevent danger to the environment or wildlife of the state, including escape of deleterious exotic wildlife specimens or ingress of resident wildlife ungulates (hoofed animals). The adequacy of the facility shall be determined by the director or agents of the director.

(b) For deleterious exotic wildlife listed in subsections (1)(d) (iv) and (1)(d)(v), the "secure facility" must comply with the fencing requirements in subsection (10) unless otherwise authorized by the director in writing.

(10) Fencing requirements

(a) Perimeter fences must be, at a minimum, eight feet above ground level for their entire length. The bottom six feet must be mesh of sufficient size to prevent resident wildlife ungulates (hoofed animals) from entering and deleterious exotic wildlife from escaping. Supplemental wire required to attain a height of eight feet may be smooth, barbed, or woven wire (at least 12-1/2 gauge) with strands spaced not more than six inches apart.

(b) Perimeter fences constructed of high tensile wire must be supported by a post or stay at minimum intervals of eight feet.

(c) Perimeter fences must be at least 12-1/2 gauge woven wire, 14-1/2 gauge high-tensile woven wire, chain link, nonclimbable woven fence, or other fence approved by the director.

(i) If the wire used is not a full eight feet in height, it must be overlapped one row and securely fastened at every other vertical row or woven together with cable.

(d) Electric fencing materials may be used on perimeter fences only as a supplement to conventional fencing materials.

(e) All gates in the perimeter fences must be self-closing, equipped with two locking devices, and installed only in locations that have been approved by the director. Double gates may be required at points in the perimeter fences subject to frequent vehicle traffic that is not related to activities involving the holding of deleterious exotic wildlife.

(f) Posts used in the perimeter fences must be:

(i) Wood (pressure treated), five-inch minimum diameter or an equivalent as approved by the director;

(ii) Spaced no more than twenty-four feet apart with stays or supports at eight foot intervals between the posts;

(iii) Extended at least eight feet above ground level;

(iv) Corners braced with wood or with an equivalent material as approved by the director.

(g) Fences must be maintained at all times to prevent deleterious exotic wildlife from escaping or resident wildlife ungulates (hoofed animals) from entering the enclosure. If such animals do pass through, under, or over the fence because of any topographic feature or other conditions, the person possessing deleterious exotic wildlife must immediately supplement the fence to prevent continued passage.

(h) For any fence existing prior to February 13, 1993, a person may petition the director in writing for a variance from the above fencing requirements. Any such petition must be filed no later than May 31, 1993 and must identify all aspects in which the existing fence does not meet the fencing requirements contained herein. On approval of the director, such person may maintain such existing fence with normal repair. However, any extension or relocation of existing fence must meet the fencing requirements contained herein.

(11) Marking requirements

(a) All live specimens of deleterious exotic wildlife except those listed in subsections (1)(a) and (1)(b), shall be permanently and individually identified by methods approved by the director,

(b) Identification assigned to an individual animal may not be transferred to any other animal.

(c) All specimens of deleterious exotic wildlife identified in subsections (1)(d)(iv) and (1)(d)(v) must be individually identified by the methods specified below.

(i) All live specimens of such deleterious exotic wildlife shall be marked with USDA Official ear tags or with ear tags supplied or approved by the department. Tags shall be applied in sequential order, and

(ii) All live specimens of such deleterious exotic wildlife shall be marked with a tattoo with an identifying number that has been recorded with the director. The tattoo must be placed on the left ear of the animal.

(d) All lawful progeny of deleterious exotic wildlife must be tagged and tattooed by December 31 of the year of birth or upon leaving the holding facility, whichever is earlier.

(e) Where allowed, if an animal is sold or transferred within the state, the tag and tattoo must accompany the animal. The new owner or possessor shall not renumber the animal.

(f) Where allowed, live specimens of deleterious exotic wildlife shall be marked prior to importation.

(g) No unmarked deleterious exotic wildlife may be sold or otherwise transferred from the holding facility.

(12) Testing of specimens

(a) Where allowed, prior to entry into the state of Washington, a person importing any member of the Genus Cervus which is identified in subsection (1)(v) herein must submit records of genetic tests, conducted by a professionally recognized laboratory to identify red deer genetic influence (genetic material from any member of any subspecies, race, or species of the elk-red deer-wapiti complex Cervus elaphus not indigenous to the state of Washington). Such testing shall be at the possessor's expense. Animals which are deemed by department of wildlife biologists upon examination to exhibit either: behavioral (vocalization), morphological (size, rump patch, color) or biochemical indications of such influence (hemoglobin, superoxide dismutase, transferrin and post-transferrin, or others to be developed) may not be imported.

(b) The director may require a person currently possessing any member of the Genus Cervus which are identified in subsection (1)(v) herein to submit records of genetic tests, conducted by a professionally recognized laboratory to identify red deer genetic influence (genetic material from any member of any subspecies, race, or species of the elk-red deer-wapiti complex Cervus elaphus not indigenous to the state of Washington), for each individual cervid to the department. Such testing shall be at the ((~~possesor's~~)) possessor's expense. The director may require that any animal identified a red deer or having non-indigenous genetic influence be destroyed, removed from the state, or neutered.

(c) The director may require that all specimens of deleterious exotic wildlife lawfully in captivity be tested for brucellosis (brucella abortus), tuberculosis (mycobacterium bovis and mycobacterium tuberculosis), meningeal worm (Paralophostrongylus tenuis), and muscle worm (Elaphostrongylus cervis) in accordance with the procedures specified in department of agriculture WAC 16-54-035 as now or hereafter amended and/or for other disease or parasites determined to pose a risk to wildlife. The results of such tests shall be filed with the director as required.

(13) Reporting

(a) A person holding deleterious exotic wildlife in captivity shall submit a completed report no later than March 30, 1993 and then no later than January 31 of each year, or as otherwise required by the director, on a form provided by the department.

(b) Persons possessing deleterious exotic wildlife must notify the director within ten days of any change of such persons' address and/or location of the holding facility.

(14) Inspection

(a) All holding facilities for deleterious exotic wildlife located in the state are subject to inspection for compliance with the provisions of this section.

(b) Such inspections may take place without warrant or prior notice but shall be conducted at reasonable times and locations.

(15) Notification and disposition of diseased animals.

(a) Any person who has reason to believe that deleterious exotic wildlife being held pursuant to this rule have or have been exposed to a dangerous or communicable disease or parasite shall notify the department immediately.

(b) Upon having reason to believe that deleterious exotic wildlife held pursuant to this rule have been exposed to or contracted a dangerous or contagious disease or parasite, the director may order inspection of such animals by a licensed, accredited veterinarian or inspection agent. Inspection shall be at the expense of the possessor.

(c) The director shall determine when destruction of animals, quarantine, or disinfection is required at any facility holding deleterious exotic wildlife pursuant to this rule. If the director determines that destruction, quarantine, or disinfection is required, a written order shall be issued to the possessor describing the procedure to be followed and the time period for carrying out such actions. Such activities shall be at the expense of the possessor.

(16) Quarantine area

(a) Any facility holding deleterious exotic wildlife must have an approved quarantine facility within its exterior boundary or submit an action plan to the director that guarantees access to an approved quarantine facility within the state of Washington.

(i) An approved quarantine facility is one that meets criteria set by the Washington State department of agriculture.

(ii) The quarantine area must meet the tests of isolation, separate feed and water, escape security, and allowances for the humane holding and care of its occupants for extended periods of time.

(b) Should the imposition of a quarantine become necessary, the possessor must provide an on-site quarantine facility or make arrangements at such possessor's expense to transport the animals to the approved quarantine facility named in the quarantine action plan.

(17) Seizure

(a) The department of wildlife may seize any unlawfully possessed deleterious exotic wildlife.

(b) The cost of any seizure and/or holding of deleterious exotic wildlife may be charged to the possessor of such animals.

(18) Monitoring and control programs

The director may authorize by permit volunteers working within the scope and supervision of a department sponsored monitoring and control program to capture, possess and destroy deleterious exotic wildlife, provided that:

(a) All volunteers have completed a mandatory training program and are certified by the department.

(b) All volunteers have a permit authorized by the director or designee in possession and are working within the scope of a monitoring and control effort supervised by the department.

(d) Volunteers are required to submit a report to the department within thirty days of any monitoring or control activity in accordance with the specifications outlined in the permit.

[Statutory Authority: RCW 77.12.020 and 77.12.040. 93-04-039 (Order 582), � 232-12-017, filed 1/27/93, effective 2/13/93. Statutory Authority: RCW 77.12.020. 91-03-082 (Order 482), � 232-12-017, filed 1/17/91, effective 1/18/91; 90-10-067 (Order 434), � 232-12-017, filed 5/1/90, effective 6/1/90. Statutory Authority: RCW 77.12.040. 85-09-014 (Order 247), � 232-12-017, filed 4/9/85; 81-22-002 (Order 174), � 232-12-017, filed 10/22/81; 81-12-029 (Order 165), � 232-12-017, filed 6/1/81.]

NOTES:

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules, and deems ineffectual changes not filed by the agency in this manner. Some of the bracketed material in the above section does not appear to conform tho the statutory requirements

Reviser's Note: Some of the brackets and enclosed material in the text of the above section occurred in the copy filed by the agency

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.