Date of Adoption: February 15, 2002.

     Purpose: Meet criteria supporting Governor Locke's Executive Order 97-02.

     Citation of Existing Rules Affected by this Order: Amending WAC 308-93-700, 308-93-710, 308-93-720, 308-93-730, 308-93-740, 308-93-750, 308-93-760, and 308-93-770.

     Statutory Authority for Adoption: RCW 88.02.100.

      Adopted under notice filed as WSR 01-24-085 on December 4, 2001.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 8, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 8, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: Thirty-one days after filing.

February 15, 2002

Fred Stephens

Director

OTS-5364.2

AMENDATORY SECTION(Amending WSR 96-16-038, filed 8/1/96, effective 9/1/96)

WAC 308-93-700   ((Purpose)) Indian tribe vessels.   What is the purpose of WAC 308-93-700 through 308-93-770? WAC 308-93-700 through 308-93-770 are adopted to implement the Consent Decree entered in United States v. Washington, Civ. No. 9213 - Phase I - Sub. 88-1 entered on November 28, 1994, and signed by the United States, the signatory tribes, and the state of Washington. These rules do not repeat all of the sections of the Consent Decree and are not intended to ((set out)) include all of the requirements and provisions of the Consent Decree. ((Nothing in these rules is intended to enact any rules inconsistent with the Consent Decree or to alter in any way the state of Washington's obligations under the Consent Decree.)) However, the tribes and the state have agreed to an intergovernmental cooperative registration procedure. In the event of conflicting provisions, interpretations, or applications between these rules and the Consent Decree, resolution shall give precedence to the Consent Decree.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-700, filed 8/1/96, effective 9/1/96.]

     (1) "Indian tribe" and "tribal" means the Indian tribes which are signatory to the Consent Decree entered in United State v. Washington, Civ. No. 9213 - Phase I - Sub. 88-1 entered on November 28, 1994, including: Lower Elwha S'Klallam Tribe, Hoh Tribe, Jamestown S'Klallam Tribe, Lummi Nation, Makah Tribe, Muckleshoot Tribe, Nisqually Tribe, Nooksack Tribe, Port Gamble S'Klallam Tribe, Puyallup Tribe, Quileute Tribe, Quinault Indian Nation, Sauk-Suiattle Tribe, Skokomish Tribe, Squaxin Island Tribe, Stillaquamish Tribe, Suquamish Tribe, Swinomish Indian Tribal Community, Tulalip Tribes, Upper Skagit Tribe, and Yakama Nation.

     (2) "Tribal member(s)" means those persons duly enrolled in the Indian tribes identified in subsection (1) of this section.

     (3) The terms "vessels" or "boats" are synonymous and mean watercraft used in connection with the exercise of federally secured fishing rights.

     (4) All other terms have the same meaning as used in chapter 88.02 RCW and chapter 308-93 WAC.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-710, filed 8/1/96, effective 9/1/96.]

     (2) Are state registration numbering and fee requirements applied to vessels recognized under Consent Decree entered in United States v. Washington, Civ. No. 9213 - Phase I - Sub. 88-1 entered on November 28, 1994? State registration, numbering, and fee requirements otherwise applicable to a nontreaty vessel, ((shall)) will not be applied to any tribally owned vessel or vessel owned by a tribal member(s) which is used in the exercise of treaty fishing rights and is tribally registered.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-720, filed 8/1/96, effective 9/1/96.]

     (2) How are Indian tribe vessel registration numbers dispersed? Each tribe ((shall be)) is entitled to a block of numbers with a unique tribal suffix. Each tribe may select a unique, three-letter suffix for its state or tribally produced vessel number, unless otherwise agreed upon by the Coast Guard. The vessel numbers ((shall otherwise)) must be of the same size and placed in the same location as specified for those vessels registered ((pursuant to)) under chapter 88.02 RCW. The department ((shall)) will not issue a plaque, sticker, or other form of number ((or annual registration)) to affix to a numbered vessel.

     (3) Are Indian tribe vessel registration number decals unique to the tribe? The decal may be unique to each tribe, ((so)) as long as ((otherwise conforming)) the decal conforms to the Coast Guard specifications regarding size and color. A tribe may choose to use decals provided by the department ((issued decals)).

     (4) When will the department supply the Indian tribe with a list of vessel numbers and decals? By June 1st of each year, the department will provide each Indian tribe a list of vessel numbers, and state decals if the Indian tribe so requests, in the quantity, and with any particular three-letter suffix specified by the Indian tribe. Such quantity ((shall)) must be sufficient to enable each Indian tribe to issue a vessel number to each of its tribal fishers for the vessels they use in the treaty fishery. ((Notwithstanding the foregoing, the department need not)) The department has thirty days to provide an Indian tribe the list of vessel numbers and decals ((sooner than thirty days)) after the Indian tribe has advised the department of its number and decal requirement.

     (5) What happens if the department fails to provide a list of vessel numbers requested by an Indian tribe in the time frame outlined in subsection (4) of this section? Failure ((of)) by the department to provide a list of vessel numbers requested by an Indian tribe in the time frames outlined in this section ((shall)) will not ((preclude)) prohibit the Indian tribe or tribal fishermen from lawfully fishing ((pursuant to)) under the treaty fishing right, and ((shall)) will be a complete defense in any action by the state to enforce its tax or vessel registration laws until the state complies with the terms of this section.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-730, filed 8/1/96, effective 9/1/96.]

     Tribal and ((treaty fishing)) tribal member vessels ((shall)) will be deemed by the state and the Coast Guard to be properly registered ((so long as)) provided the following conditions are met:

     (1) The ((individual)) tribal member has provided information listed in subsection (3) of this section to the Indian tribe of which ((he or she is)) they are a member, on forms satisfactory to the ((Indian)) tribe and the state ((information listed in subsection (3) of this section)); and

     (2) The ((appropriate Indian)) tribe to which the individual member belongs has approved registration of the vessel and ((so advised)) has notified the department, ((on agreed to forms, containing all the)) using forms satisfactory to the tribe and the state which contain information ((about the vessel and its owner which the Indian tribe is required to collect pursuant to)) listed in subsection (3) of this section;

     (3) ((Contents of)) Information required on the form for registration of ((Indian tribe)) a tribal vessel:

     (a) Name and address of the owner, including zip code;

     (b) State in which vessel is or will be principally used;

     (c) The hull identification number previously issued by an issuing authority for the vessel, if any;

     (d) Whether the application is for a new ((number)) registration, renewal ((of a number)), or transfer of ownership;

     (e) Whether the vessel is used for pleasure, rent or lease, dealer or manufacturer demonstration, commercial passenger carrying, commercial fishing, or other commercial use;

     (f) Make of vessel;

     (g) Year vessel was manufactured or model year;

     (h) Manufacturer's or department assigned hull identification number, if any;

     (i) Overall length of vessel;

     (j) Type of vessel ((()), i.e., open, cabin, house, or other(()));

     (k) ((Whether the hull is)) Hull building material, i.e., wood, steel, aluminum, fiberglass, plastic, or other;

     (l) ((Whether)) The propulsion ((is)), i.e., inboard, outboard, inboard-outdrive, sail, or other;

     (m) ((Whether)) The fuel ((is)), i.e., gasoline, diesel, or other;

     (n) The signature of the owner;

     ((Application made by a manufacturer or dealer for a number that is to be temporarily affixed to a vessel for demonstration or test purposes may omit (f) through (m) of this subsection. An application made by a person who intends to lease or rent the vessel without propulsion machinery may omit (l) and (m) of this subsection;))

     (4) The registering ((Indian)) tribe may issue a vessel number from the list obtained from the department, upon tribal approval of a ((tribal)) member's registration application((; and such)). The registration((, which shall be)):

     (a) Will be valid for a term of one year((, shall be in immediate effect and));

     (b) Will be effective immediately; and

     (c) Will remain in effect until suspended or revoked by the tribe in accordance with the procedure set forth in WAC 308-93-750, or for any other reason the tribe determines appropriate.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-740, filed 8/1/96, effective 9/1/96.]

     (a) Inaccurate or false information has been submitted; or

     (b) Information required pursuant to WAC 308-93-740(3) is omitted; or

     (c) The department obtains information that the vessel is stolen or ((otherwise)) is not ((beneficially)) owned by the registrant.

     (2) Is the department required to notify the tribe that the registration appears to be improper? Yes, the department ((shall serve notice upon)) must notify the ((Indian)) tribe that the registration appears to be improper ((and)). The department's objection ((thereto)) must be made either in person or by certified mail, return receipt requested. ((The Indian tribe shall)) Within thirty days of receipt of the notice, the tribe must provide the information requested, take the requested action, clarify any misunderstanding, or inform the department that the tribe does not intend to take the action requested or provide the requested information.

     (3) Does the department have the right to request revocation of a tribally issued registration and number? Yes, the department may request a tribally issued registration and number be revoked at any time should it be determined that the information ((demonstrate the information)) originally submitted was false((,)) or inaccurate, the vessel is stolen or not ((beneficially)) owned by the registrant. The registrant and ((Indian)) tribe ((shall have)) must be given a reasonable opportunity to correct inaccurate information.

     (4)((Nothing herein shall act to revoke)) Is the revocation of a tribal vessel registration request effective immediately? No, nor ((shall)) will any ((Indian)) tribe be required to revoke, the registration, number, ((and)) or vessel decal issued by the ((Indian)) tribe to the tribal member until all dispute resolution procedures have been exhausted. If the state establishes the registration is improper, the ((Indian)) tribe ((shall)) must revoke the registration((, plaque,)) number and decal.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-750, filed 8/1/96, effective 9/1/96.]

     Olympia, Washington 98507-9909

     The department ((shall)) will store the registration data in a computer system, with twenty-four-hour availability, and have procedures ((which)) that will limit access to civil or criminal law enforcement entities seeking information for law enforcement purposes.

     (2) ((If an Indian)) Shall the tribe notify the department if they find information that is not correct or is incomplete on a tribal vessel registration? Yes, if a tribe becomes aware that information regarding a vessel authorized by that tribe to participate in the treaty fishery, and contained in the department vessel identification system, or the vessel identification system of another ((Indian)) tribe, may be erroneous or incomplete and should be corrected, the tribe will promptly notify the department or the tribe which operates the identification system. The notice to the department and the other ((Indian)) tribe ((shall)) must state the reasons why it is believed the system information is incorrect or incomplete. The notifying tribe ((shall)) must also identify the correct or additional information the tribe believes should be entered into the system. The department ((shall)) will respond promptly to each ((such)) notice regarding inaccurate or incomplete information, explaining what, if any, changes or corrections have been made.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-760, filed 8/1/96, effective 9/1/96.]

     (2) How is access to tribal vessel information obtained? Access to Indian tribe vessel information ((shall)) must be available via a modem, or other suitable electronic format, to all state, tribal, federal, and foreign law enforcement agencies. Information available by computer ((shall)) will not be considered in the possession or control of any other ((party)) entity. On-line access is authorized between and among all parties' vessel registration information systems to permit state, tribal, and federal enforcement personnel to directly obtain vessel registration information from the various governments' vessel information systems, regarding treaty and nontreaty vessels. No altering of another party's information ((shall)) will be made without that party's consent.

     (3) The state shall defend against any private ((party's)) entity's attempt to establish a legal right to obtain tribal registration data((, shall)). The department must notify the affected ((Indian)) tribe of any such private party's claim at the time the claim is made, and ((shall)) must keep the ((Indian)) tribe informed as to the status of the matter.

[Statutory Authority: RCW 88.02.100 and United States v Washington, Subproceeding No. 88-1. 96-16-038, § 308-93-770, filed 8/1/96, effective 9/1/96.]

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