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Oregon State Archives

Oregon Bulletin

January 1, 2011

Department of Fish and Wildlife
Chapter 635

Rule Caption: Prior Year 5,000 Pound Landing Requirement Temporarily Removed from Brine Shrimp Permit Renewal Rule.

Adm. Order No.: DFW 155-2010(Temp)

Filed with Sec. of State: 11-22-2010

Certified to be Effective: 11-23-10 thru 5-21-11

Notice Publication Date:

Rules Amended: 635-006-1075

Subject: This amended rule allows the renewal of Brine Shrimp permits without the previously required 5,000 pound landing from the previous year. Due to low water in Lake Abert, in 2010, harvesters were unable to use their boats and harvest enough Brine Shrimp to satisfy the 5,000 pounds in landings required for permit renewal.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-006-1075

Renewal of Permit

(1) An individual who obtained a limited entry permit may renew the permit as follows:

(a) Gillnet salmon — Permits may be renewed by submission to the Department of a $100.00 fee (plus a $2.00 license agent fee) for resident applicants and $290.00 fee (plus a $2.00 license agent fee) for nonresident applicants and a complete application, see ORS 508.781 and 508.790;

(b) Troll salmon — Permits may be renewed by submission to the Department of a $100.00 fee (plus a $2.00 license agent fee) for resident applicants and $290.00 fee (plus a $2.00 license agent fee) for nonresident applicants and a complete application, see ORS 508.807 and 508.816;

(d) Scallop — see ORS 508.849 and 508.858;

(e) Roe-herring permit — Permits may be renewed by submission to the Department of a $125.00 fee (plus a $2.00 license agent fee) for resident applicants and $290.00 fee (plus a $2.00 license agent fee) for nonresident applicants and a complete application;

(f) Sea Urchin permit:

(A) Permits may be renewed by submission to the Department of a $100.00 fee (plus a $2.00 license agent fee) for resident applicants and $290.00 fee (plus a $2.00 license agent fee) for nonresident applicants and a complete application date-stamped or postmarked by January 31 of the year for which renewal is sought; and

(B) The permittee shall have annually lawfully landed 5,000 pounds of sea urchins in Oregon. If a permittee obtained a permit later than January of the prior year (because the permit was obtained through the lottery, or as a result of the Commercial Fishery Permit Board actions or surrender of a permit by a permit holder), the permittee shall not be required to make the 5,000 pound landing requirement by the following January. Instead, at the next renewal thereafter, the permittee shall be required to demonstrate that the 5,000 pound landing requirement was fulfilled during the first full year (twelve-month period) in which the permit was held.

(g) Ocean Dungeness crab permit — see ORS 508.941. A permit which is not renewed by December 31 lapses, and may not be renewed for subsequent years.

(h) Black rockfish/blue rockfish/nearshore fishery — see ORS 508.947.

(i) Brine Shrimp permit:

(A) Permits may be renewed by submission to the Department of a $100.00 fee (plus a $2.00 license agent fee) and a complete application date-stamped or postmarked by January 31 of the year for which renewal is sought; and

(j) Bay clam dive fishery:

(A) Permits may be renewed by submitting to the Department $100.00 fee (plus a $2.00 license agent fee) and a complete application date-stamped or postmarked by January 31 of the year for which renewal is sought and;

(B) The permittee shall have lawfully made five landings consisting of at least 100 pounds each landing or an annual total of 2,500 pounds of bay clams, using dive gear in Oregon in the prior calendar year;

(C) Logbooks required under OAR 635-006-1110 must be turned into an ODFW office by the application deadline for renewal of a permit.

(D) If a permit is transferred under OAR 635-006-1095(10)(d), annual renewal requirements are waived in the year the transfer occurred.

(k) Sardine fishery:

(A) Permits may be renewed for the following year:

(i) By submitting $100.00 fee (plus a $2.00 license agent fee) and a complete application to the Department date-stamped or postmarked by December 31 of the year the permit is sought for renewal and;

(ii) Submitting the logbooks required under OAR 635-006-1110; and

(iii) If during the year preceding the calendar year for which the permit is sought for renewal, the federal coastwide maximum harvest guideline referenced in OAR 635-004-0016 was greater than 100,000 metric tons and the permitted vessel lawfully landed into Oregon either (I) a minimum of 10 landings of sardines of a least 5 metric tons each, or (II) landings of sardines having an aggregate ex-vessel price of at least $40,000.

(B) The Commercial Fishery Permit Board may waive the landing requirements of section (A)(iii) of this rule if it finds that the failure to meet these requirements is due to the permit holder’s illness or injury, or to circumstances beyond the control of the permit holder. Final Orders shall be issued by the Commercial Fishery Permit Board and may be appealed as provided in ORS 183.480 through 183.550.

(C) The Commission may, at its discretion, waive the landing requirements of section (A)(iii) of this rule for all Limited Entry Sardine Permit holders due to unusual market conditions.

(2) An application for renewal in any limited entry fishery shall be considered complete if it is legible, has all information requested in the form, and is accompanied by the required fee in full. Any application which is not complete shall be returned, and unless it is thereafter resubmitted and deemed complete by December 31 of the permit year sought, the individual shall not be considered to have applied for renewal in a timely manner.

(3) It is the responsibility of the permittee to ensure that an application is complete and is filed in a timely manner. Failure of the Department to return an application for incompleteness or of an individual to receive a returned application shall not be grounds for treating the application as having been filed in a timely and complete manner.

Stat. Auth.: ORS 506.119

Stats. Implemented: ORS 506.109, 506.129 & 508.921 - 508.941

Hist.: FWC 3-1996, f. 1-31-96, cert. ef. 2-1-96; FWC 64-1996, f. 11-13-96, cert. ef. 11-15-96; DFW 92-1998, f. & cert. ef. 11-25-98; DFW 112-2003, f. & cert. ef. 11-14-03; DFW 137-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 139-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 23-2006, f. & cert, ef, 4-21-06; DFW 2-2007, f. & cert. ef. 1-12-07; DFW 86-2007(Temp), f. & cert. ef. 9-10-07 thru 9-17-07; Administrative correction 10-16-07; DFW 3-2008, f. & cert. ef. 1-15-08; DFW 142-2008, f. & cert. ef. 11-21-08; DFW 38-2009, f. & cert. ef. 4-22-09; DFW 145-2009, f. 12-9-09, cert. ef. 1-1-10; DFW 155-2010(Temp), f. 11-22-10, cert. ef. 11-23-10 thru 5-21-11

Rule Caption: Commercial Smelt Seasons Are Rescinded for the Columbia River.

Adm. Order No.: DFW 156-2010(Temp)

Filed with Sec. of State: 11-23-2010

Certified to be Effective: 12-1-10 thru 3-31-11

Notice Publication Date:

Rules Amended: 635-042-0130

Subject: Amended rule rescinds the commercial smelt fishing season in the Columbia River that was scheduled by permanent rule to start December 1, 2010 and continue until March 31, 2011. These modifications are consistent with the action taken November 23, 2010 by the Columbia River Compact agencies of Oregon and Washington.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-042-0130

Smelt Season

Smelt may not be taken for commercial purposes from the Columbia River at any time.

Stat. Auth.: ORS 183.325, 506.109 & 506.119

Stats. Implemented: ORS 506.129 & 507.030

Hist.: FWC 2-1985, f. & ef. 1-30-85; FWC 79-1986(Temp), f. & ef. 12-22-86; FWC 2-1987, f. & ef. 1-23-87; FWC 9-1994, f. 2-14-94, cert. ef. 2-15-94; FWC 15-1995, f. & cert. ef. 2-15-95; DFW 82-1998(Temp), f. 10-6-98, cert. ef. 10-7-98 thru 10-23-98; DFW 95-1999(Temp), f. 12-22-99, cert. ef. 12-26-99 thru 1-21-00; DFW 3-2000, f. & cert. ef. 1-24-00; DFW 8-2000(Temp), f. 2-18-00, cert. ef. 2-20-00 thru 2-29-00; Administrative correction 3-17-00; DFW 80-2000(Temp), f, 12-22-00, cert. ef. 1-1-01 thru 3-31-01; DFW 10-2001(Temp), f. & cert. ef. 3-6-01 thru 3-31-01; Administrative correction 6-21-01; DFW 115-2001(Temp), f. 12-13-01, cert. ef. 1-1-02 thru 3-31-02; DFW 9-2002, f. & cert. ef. 2-1-02; DFW 11-2002(Temp), f. & cert. ef. 2-8-02 thru 8-7-02; DFW 134-2002(Temp), f. & cert. ef. 12-19-02 thru 4-1-03; DFW 131-2003(Temp), f. 12-26-03, cert. ef. 1-1-04 thru 4-1-04; DFW 21-2004(Temp), f. & cert. ef. 3-18-04 thru 7-31-04; Administrative correction 8-19-04; DFW 130-2004(Temp), f. 12-23-04, cert. ef. 1-1-05 thru 4-1-05; DFW 8-2005(Temp), f. & cert. ef. 2-24-05 thru 4-1-05; Administrative correction 4-20-05; DFW 145-2005(Temp), f. 12-21-05, cert. ef. 1-1-06 thru 3-31-06; DFW 11-2006(Temp), f. & cert. ef. 3-9-06 thru 7-31-06; Administrative correction 8-22-06; DFW 131-2006(Temp), f. 12-20-06, cert. ef. 1-1-07 thru 6-29-07; DFW 13-2007(Temp), f. & cert. ef. 3-6-07 thru 9-1-07; Administrative correction 9-16-07; DFW 125-2007(Temp), f. 11-29-07, cert. ef. 12-1-07 thru 5-28-08; DFW 135-2007(Temp), f. 12-28-07, cert. ef. 1-1-08 thru 6-28-08; DFW 10-2008, f. & cert. ef. 2-11-08; DFW 148-2008(Temp), f. 12-19-08, cert. ef. 1-1-09 thru 6-29-09; DFW 20-2009, f. & cert. ef. 2-26-09; DFW 151-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 3-31-10; DFW 10-2010(Temp), f. 2-4-10, cert. ef. 2-8-10 thru 3-31-10; DFW 28-2010(Temp), f. 3-9-10, cert. ef. 3-11-10 thru 3-31-10; Administrative correction 4-21-10; DFW 156-2010(Temp), f. 11-23-10, cert. ef. 12-1-10 thru 3-31-11

Rule Caption: Amendments to Rules for Commercial and Recreational Groundfish and Commercial Smelt Fisheries.

Adm. Order No.: DFW 157-2010

Filed with Sec. of State: 12-6-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 11-1-2010

Rules Amended: 635-004-0018, 635-004-0019, 635-004-0025, 635-004-0035, 635-004-0070, 635-004-0075, 635-006-0215, 635-039-0080, 635-039-0090

Subject: Amended rules to include: 2011 recreational groundfish harvest specifications and fishery regulations; 2011 commercial groundfish harvest specifications and fishery regulations; and closure of commercial smelt fisheries on the Umpqua and Sandy rivers. State rules governing marine commercial and recreational groundfish fisheries are based on rules adopted federally. The final federal rules governing 2011-2012 groundfish fisheries is expected to be published after January 1, 2011. Two rule modifications are needed in state prior to the January 1, 2011 implementation of federal rules. There are additional housekeeping amendments relative to the sport groundfish regulations for yelloweye and Canary rockfish harvest guidelines. On May 17, 2010, the National Marine Fisheries Service (NMFS) listed Pacific eulachon, commonly known as smelt, as threatened under the Endangered Species Act (ESA). Because of the difficulty in distinguishing between smelt species, all directed smelt fisheries must be closed by rule.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-004-0018

Scope of Rules

Division 004 incorporates into Oregon Administrative Rules, by reference, the groundfish specifications and management measures for 2011 to the extent they are consistent with Code of Federal Regulations, Title 50 Part 660, Subpart G (61FR34572, July 2, 1996), Vol. 74, No. 43, dated March 6, 2009 as amended by Federal Regulations. Therefore, persons must consult the Federal Regulations in addition to Division 004 to determine all applicable groundfish fishing requirements. Where regulations refer to the fishery management area, that area is extended from shore to three nautical miles from shore coterminous with the Exclusive Economic Zone. A copy of the Federal Regulations may be obtained by contacting the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service at www.nwr.noaa.gov or 7600 Sand Point Way NE, Seattle, WA 98115-0070.

Stat. Auth.: ORS 496.138 & 506.119

Stats. Implemented: ORS 496.162 & 506.129

Hist.: FWC 141-1991, f. 12-31-91, cert. ef. 1-1-92; FWC 95-1994, f. 12-28-94, cert. ef. 1-1-95; FWC 71-1996, f. 12-26-96, cert. ef. 1-1-97; DFW 1-1998, f. & cert. ef. 1-9-98; DFW 91-1998, f. & cert. ef. 11-25-98; DFW 98-1999, f. 12-27-99, cert. ef. 1-1-00; DFW 81-2000, f. 12-22-00, cert. ef. 1-1-01; DFW 118-2001, f. 12-24-01, cert. ef. 1-1-02; DFW 135-2002, f. 12-23-02, cert. ef. 1-1-03; DFW 112-2003, f. & cert. ef. 11-14-03; DFW 128-2003, f. 12-15-03, cert. ef. 1-1-04; DFW 117-2004, f. 12-13-04, cert. ef. 1-1-05; DFW 133-2006(Temp), f. 12-21-06, cert. ef. 1-1-07 thru 6-29-07; DFW 3-2007, f. & cert. ef. 1-12-07; DFW 128-2007, f. 12-13-07, cert. ef. 1-1-08; DFW 39-2009, f. & cert. ef. 4-27-09; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-004-0019

Inclusions and Modifications

(1) OAR chapter 635, division 004, modifies or is in addition to provisions contained in Code of Federal Regulations, Title 50, Part 660, Subpart G, West Coast Groundfish Fisheries.

(2) The Code of Federal Regulations (CFR), Title 50, Part 660, Subpart G, provides requirements for commercial groundfish fishing in the Pacific Ocean off the Oregon coast. However, additional regulations may be promulgated subsequently, and these supersede, to the extent of any inconsistency, the Code of Federal Regulations.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 506.119

Stats. Implemented: ORS 506.109 & 506.129

Hist.: DFW 76-1999(Temp), f. 9-30-99, cert. ef. 10-1-99 thru 12-31-99; DFW 81-1999(Temp), f. & cert. ef. 10-12-99 thru 12-31-99; DFW 98-1999, f. 12-27-99, cert. ef. 1-1-00; DFW 23-2005(Temp), F. & cert. ef. 4-8-05 thru 10-4-05; DFW 30-2005(Temp), f. 4-29-05, cert. ef. 5-1-05 thru 10-27-05; DFW 43-2005(Temp), f. & cert. ef. 5-13-05 thru 10-17-05; DFW 68-2005(Temp), 6-30-05, cert. ef. 7-1-05 thru 12-27-05; DFW 114-2005(Temp), f. 9-30-05, cert. ef. 10-1-05 thru 12-31-05; DFW 125-2005(Temp), f. & cert. ef. 10-19-05 thru 12-31-05; DFW 134-2005(Temp), f. & cert. ef. 11-30-05 thru 12-31-05; DFW 147-2005(Temp), f. 12-28-05, cert. ef. 1-1-06 thru 6-28-06; DFW 8-2006(Temp), f. 2-28-06, cert. ef. 3-1-06 thru 8-25-06; DFW 25-2006(Temp), f. 4-28-06, cert. ef. 5-1-06 thru 10-27-06; DFW 55-2006(Temp), f. 6-30-06, cert. ef. 7-1-06 thru 12-27-06; DFW 110-2006(Temp), f. 9-29-06, cert. ef. 10-1-06 thru 12-31-06; Administrative Correction 1-16-07; DFW 29-2007(Temp), f. & cert. ef. 5-1-07 thru 10-27-07; DFW 58-2007(Temp), f. 7-18-07, cert. ef. 8-1-07 thru 12-31-07; DFW 106-2007(Temp), f. 10-5-07, cert. ef. 10-6-07 thru 12-31-07; DFW 123-2007(Temp), f. 11-26-07, cert. ef. 11-28-07 thru 12-31-07; DFW 126-2007(Temp), f. & cert. ef. 12-11-07 thru 12-31-07; DFW 41-2008(Temp), f. 4-23-08, cert. ef. 5-1-08 thru 10-27-08; DFW 88-2008(Temp), f. & cert. ef. 8-1-08 thru 12-31-08; DFW 146-2008(Temp), f. & cert. ef. 12-4-08 thru 12-31-08; DFW 1-2009(Temp), f. & cert. ef. 1-5-09 thru 5-1-09; DFW 29-2009(Temp), f. & cert. ef. 3-18-09 thru 5-1-09; DFW 41-2009(Temp), f. 4-29-09, cert. ef. 5-1-09 thru 10-27-09; DFW 39-2009, f. & cert. ef. 4-27-09; DFW 81-2009(Temp), f. & cert. ef. 7-2-09 thru 12-28-09; DFW 136-2009, f. 10-28-09 thru 12-31-09; DFW 138-2009(Temp), f. & cert. ef. 11-2-09 thru 12-31-09; Administrative correction 1-25-10; DFW 25-2010(Temp), f. & cert. ef. 3-3-10 thru 8-29-10; DFW 59-2010(Temp), f. & cert. ef. 5-12-10 thru 11-7-10; DFW 109-2010(Temp), f. & cert. ef. 7-30-10 thru 11-30-10; DFW 122-2010(Temp), f. & cert. ef. 8-25-10 thru 11-30-10; DFW 138-2010(Temp), f. & cert. ef. 10-4-10 thru 12-31-10; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-004-0025

Closed Season

There is no closed season or area for the taking of ocean food fish for commercial purposes except:

(1) As provided in these rules or in the Code of Federal Regulations, Title 50 Part 660, subpart G.

(2) It is unlawful at all times to take ocean food fish for commercial purposes from Oregon coastal bays, the Oregon estuary waters of the Columbia River, or from man-made structures, that extend from coastal bays, or within 200 yards of any man-made structure. This closure does not apply to:

(a) Ocean food fish taken in specific fisheries established by rule;

(b) Ocean food fish taken to be sold or used for scientific or educational purposes, or for live public display;

(c) Pacific herring, Pacific sardine (pilchard), anchovies, and shad that are taken by hook-and-line and sold as bait; or to

(d) Pacific herring, Pacific sardine (pilchard), anchovies, and shad that are taken by beach seine in the Umpqua estuary and sold as bait.

(3) All species other than those whose harvest is authorized under subsection (2) above, must be immediately returned to the water unharmed.

(4) It is unlawful to take surfperch for commercial purposes from the Pacific Ocean from August 1 through September 30

Stat. Auth.: ORS 506.119

Stats. Implemented: ORS 506.129

Hist.: FC 246, f. 5-5-72, ef. 5-15-72; FWC 38, f. & ef. 1-23-76, Renumbered from 625-010-0550; FWC 8-1979, f. 3-1-79, ef. 3-2-79; FWC 9-1979(Temp), f. & ef. 3-5-79 through 3-31-79; FWC 50-1979, f. & ef. 11-1-79, Renumbered from 635-036-0275; FWC 95-1994, f. 12-28-95, cert. ef. cert. ef. 1-1-95; FWC 71-1996, f. 12-31-96, cert. ef. 1-1-97; DFW 97-1999, f. 12-27-99, cert. ef. 1-1-00; DFW 63-2002(Temp) f. & cert. ef. 6-18-02 thru 12-14-02; DFW 103-2002(Temp), f. 9-13-02 cert. ef. 9-14-02 thru 9-30-02; DFW 115-2002, f. & cert. ef. 10-21-02; DFW 135-2002, f. 12-23-02, cert. ef. 1-1-03; DFW 91-2009, f. & cert. ef. 8-10-09; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-004-0035

Fishing Gear

(1) It is unlawful to possess, deploy, haul, or carry on board a fishing vessel a set net, trap or pot, longline, or commercial vertical hook-and-line that is not in compliance with the gear restrictions listed in sections (2) and (3) of this rule, unless such gear is the gear of another vessel that has been retrieved at sea and made inoperable or stowed in a manner not capable of being fished. The disposal at sea of such gear is prohibited by Annex V of the International Convention for the Prevention of Pollution From Ships, 1973 (Annex V of MARPOL 73/78).

(2) It is unlawful to take ocean food fish for commercial purposes by any means except:

(a) Handline, pole-and-line, or pole-reel-and-line;

(b) Longlines and vertical hook and lines are permitted in the ocean;

(d) Dipnets of hoop or A-frame design;

(e) Troll gear is permitted in the ocean from May 1 of any year through April 14 of the following year;

(f) Seines are permitted in the ocean for ocean food fish other than groundfish and for the taking of herring, sardine, and anchovy from the following inland waters:

(A) Columbia River westerly of the U.S. Highway 101 Astoria Bridge across the Columbia River;

(B) Tillamook Bay;

(D) Alsea Bay;

(E) Winchester Bay;

(F) Coos Bay.

(g) Trawl nets (bottom and pelagic) are permitted in the ocean;

(h) Set nets (trammel nets and anchored gillnets) are permitted outside state waters for groundfish south of latitude 38 degrees N. (Pt. Reyes, CA). The use of set nets is prohibited in all areas of the Pacific Ocean north of latitude 38 degrees N. except when permitted by an experimental gear permit (OAR 635-006-0020) or except when permitted under the Developmental Fisheries Program (OAR 635-006-0800 through 635-006-0950); or

(i) Spear.

(3) Longline, vertical hook-and-line and pot gear which is fixed or anchored to the bottom or drifting unattached to the vessel have the following restrictions:

(a) Gear shall not be left unattended for more than seven days;

(b) Longline and pot gear shall be marked at each terminal surface end with a pole, flag, light, radar reflector, and a buoy showing clear identification of the owner or operator;

(c) Vertical hook-and-line gear that is closely tended may be marked only with a single buoy of sufficient size to float the gear. “Closely tended” means that a vessel is within visual sighting distance or within 1/4 nautical mile as determined by electronic navigational equipment, of its vertical hook-and-line gear;

(d) Pot gear used for other than Dungeness crab and hagfish shall have biodegradable escape panels constructed with #21 or smaller, untreated cotton twine in such manner that an opening at least eight inches in diameter will result when the twine deteriorates;

(e) Pot gear used for hagfish shall include a biodegradable escape exit of at least three inches in diameter constructed with 120 thread size or smaller, untreated cotton twine or mild steel not to exceed 1/4-inch (six mm) in diameter or other materials approved by the Director. All other species of finfish and shellfish caught in hagfish pots authorized under this rule must be returned immediately to the water.

(4) A buoy used to mark fixed gear under section (3)(b) of this rule must be marked with a number clearly identifying the owner or operator of the vessel. The number may be either:

(a) If required by applicable state law, the vessel’s number, the commercial fishing license number, or buoy brand number; or

(b) The vessel documentation number issued by the U.S. Coast Guard, or, for an undocumented vessel, the vessel registration number issued by the state.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 506.119

Stats. Implemented: ORS 506.129

Hist.: FC 246, f. 5-5-72, ef. 5-15-72, Renumbered from 625-010-0555; FWC 166, f. & ef. 12-23-77; FWC 34-1979, f. & ef. 8-22-79, Renumbered from 635-036-0280; FWC 10-1983, f. & ef. 3-1-83; FWC 103-1988, f. 12-29-88, cert. ef. 1-1-89; FWC 123-1989, f. 12-19-89, cert. ef. 1-1-90; FWC 112-1990, f. 10-3-90, cert. ef. 10-5-90; FWC 141-1991, f. 12-31-91, cert. ef. 1-1-92; FWC 45-1995, f. & cert. ef. 6-1-95; FWC 51-1995, f. 6-16-95, cert. ef. 6-19-95; FWC 71-1996, f. 12-31-96, cert. ef. 1-1-97; DFW 142-2008, f. & cert. ef. 11-21-08; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-004-0070

Seasons

(1) Smelt may be taken for commercial purposes from the Columbia River described in OAR 635-042-0130.

(2) The targeted take of smelt for commercial purposes in areas and at times not specified in this rule is prohibited including take in the Pacific ocean at all times.

(3) Incidentally caught smelt may be landed by vessels targeting other commercial species not to exceed 1% of landing by weight.

Stat. Auth.: ORS 506.119, 506.129

Stats. Implemented: ORS 506

Hist.: FC 241, f. 4-5-72, ef. 4-15-72; FC 290(75-3), f. 2-20-75, ef. 3-11-75, Renumbered from 625-0100-210; FWC 16-1979, f. & ef. 4-27-79, Renumbered from 635-036-0140; FWC 83-1985, f. 12-17-85, ef. 12-18-85; DFW 156-2009, f. 12-29-09, cert. ef. 1-1-10; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-004-0075

Fishing Gear

It is unlawful to take smelt for commercial purposes from the:

(1) Pacific Ocean by any means other than fishing gear authorized for the taking of ocean food fish.

(2) Columbia River by any means other than those described in OAR 635-042-0130.

Stat. Auth.: ORS 506

Stats. Implemented: ORS 506

Hist.: FC 241, f. 4-5-72, ef. 4-15-72, Renumbered from 625-010-0215; FWC 16-1979, f. & ef. 4-27-79, Renumbered from 635-036-0145; FWC 83-1985, f. 12-17-85, ef. 12-18-85; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-006-0215

Monthly Remittance Report

(1) A monthly report is required of all licensed:

(a) Wholesale fish dealers, wholesale fish bait dealers, food fish canners, or shellfish canners receiving food fish or shellfish from licensed commercial fishers or bait fishers;

(b) Limited Fish Sellers selling food fish or shellfish.

(2) Except as provided in OAR 635-006-0220, the report is required even though no food fish or shellfish are received or sold during the calendar month covered by the report.

(3) The following information shall be included on the report:

(a) Fish dealer’s name, license number, and address;

(b) Calendar month of the report;

(d) Total pounds of all salmon and steelhead received or sold during the calendar month on which poundage fees are due. Salmon and steelhead may be reported as round weight, dressed head on or dressed head off;

(e) Total value of salmon and steelhead received or sold during the calendar month including fish eggs and parts;

(f) Total value of all other food fish and shellfish including eggs and parts;

(g) Total pounds in the round of all other species of food fish or shellfish received or sold during the calendar month on which taxes are due. The following listed species may be converted to round weight for the purposes of completing monthly reports, by multiplying each applicable below-listed factor by the dressed weight of that species:

(A) Troll salmon:

(i) Gilled and gutted — 1.15

(ii) Gilled, gutted, and headed — 1.30

(B) Halibut:

(i) Gilled and gutted — 1.15

(ii) Gilled, gutted, and headed — 1.35

(D) Pacific whiting:

(i) Fillet — 2.86

(ii) Headed and gutted — 1.56

(iii) Surimi — 6.25

(E) Razor Clams, shelled and cleaned — 2.0

(F) Scallops, shelled and cleaned — 12.2

(G) Thresher shark — 2.0

(H) Skates — 2.6

(I) Lingcod:

(i) Gilled and gutted — 1.1

(ii) Gilled, gutted and headed — 1.5

(J) Spot prawn, tails — 2.24

(K) Groundfish, glazed:

(i) Conversion factors must be calculated for each landing for each species or species group categorized in OAR 635-004-0033 when there are 60 or greater individuals of a category in a single landing as follows:

(I) Weigh a sample of at least 20 glazed fish to obtain the glazed weight;

(II) Completely remove glaze from individual fish making up the sample;

(III) Re-weigh the sample to obtain the non-glazed weight;

(IV) Divide the non-glazed weight by the glazed weight to obtain the conversion factor;

(V) A separate conversion factor may be calculated for each size grade of a species, but may only be applied to landings of that size grade;

(VI) Documentation of this calculation must be retained with the dock receiving ticket.

(ii) A conversion factor of 0.95 must be applied when there are fewer than 60 individuals of any species or species group categorized in OAR 635-004-0033 in a single landing.

(h) Total value of food fish landed in another state but not taxed by that state;

(i) Total pounds in the round of all food fish landed in another state but not taxed by that state;

(j) Total fees due — in accordance with ORS 508.505 the fees are the value of the food fish at the point of landing multiplied by the following rates:

(A) All salmon and steelhead, 3.15 percent;

(B) Effective January 1, 2005, all black rockfish, blue rockfish and nearshore fish (as defined by ORS 506.011), 5 percent.

(C) All other food fish and shellfish, 1.09 percent until the first Emergency Board hearing of 1993 and 1.25 percent, thereafter.

(k) Signature of the individual completing the report.

(4) The monthly report and all landing fees due shall be sent to the Department on or before the 20th of each month for the preceding calendar month. Landing fees are delinquent if not received or postmarked within 20 days after the end of the calendar month. A penalty charge of $5 or five percent of the landing fees due, whichever is larger, shall be assessed along with a one percent per month interest charge on any delinquent landing fee payments.

Stat. Auth.: ORS 506.119 & 508.530

Stats. Implemented: ORS 506.129, 508.535 & 508.550

Hist.: FC 246, f. 5-5-72, ef. 5-15-72; FC 274(74-6), f. 3-20-74, ef. 4-11-74; FWC 28, f. 11-28-75, ef. 1-1-76, Renumbered from 625-040-0140; FWC 48-1978, f. & ef. 9-27-78, Renumbered from 635-036-0585; FWC 17-1981(Temp), f. & ef. 5-22-81; FWC 25-1981(Temp), f. 7-8-81, ef. 7-15-81; FWC 27-1981, f. & ef. 8-14-81; FWC 1-1986, f. & ef. 1-10-86; FWC 4-1987, f. & ef. 2-6-87; FWC 99-1987, f. & ef. 11-17-87; FWC 142-1991, f. 12-31-91, cert. ef. 1-1-92; FWC 22-1992(Temp), f. 4-10-92, cert. ef. 4-13-92, FWC 53-1992, f. 7-17-92, cert. ef. 7-20-92; FWC 5-1993, f. 1-22-93, cert. ef. 1-25-93; DFW 38-1999, f. & cert. ef. 5-24-99; DFW 112-2003, f. & cert. ef. 11-14-03; DFW 31-2004, f. 4-22-04, cert. ef. 5-1-04; DFW 118-2005(Temp), f. & cert. ef. 10-10-05 thru 12-31-05; DFW 139-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 79-2008(Temp) f. & cert. ef. 7-10-08 thru 12-31-08; DFW 142-2008, f. & cert. ef. 11-21-08; DFW 70-2009(Temp), f. 6-15-09, cert. ef. 6-16-09 thru 12-12-09; DFW 73-2009(Temp), f. 6-24-09, cert. ef. 6-25-09 thru 12-21-09; Administrative correction 12-23-09; DFW 39-2010(Temp), f. 3-30-10, cert. ef. 4-1-10 thru 9-27-10; DFW 47-2010(Temp), f. 4-26-10, cert. ef. 4-27-10 thru 10-23-10; Administrative correction 11-23-10; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-039-0080

Purpose and Scope

(1) The purpose of Division 039 is to provide for management of sport fisheries for marine fish, shellfish, and marine invertebrates in the Pacific Ocean, coastal bays, and beaches over which the State has jurisdiction.

(2) Division 039 incorporates, by reference:

(a) The sport fishing regulations of the State, included in the document entitled 2011 Oregon Sport Fishing Regulations. Therefore, persons must consult the 2011 Oregon Sport Fishing Regulations in addition to Division 011 and Division 039 to determine all applicable sport fishing requirements for marine fish, shellfish and marine invertebrates.

(b) The International Pacific Halibut Commission’s News Release dated February 1, 2010 and the Oregon Department of Fish and Wildlife’s “Staff recommended 2010 PACIFIC HALIBUT SPORT REGULATIONS” dated February 10, 2010 (copies available from agency); and to the extent consistent with that document, Title 50 of the Code of Federal Regulations, Part 300, Subpart E (61FR35550, July 5, 1996), Vol. 75, No. 52, dated March 18, 2010 as amended by Federal Regulations, and Title 50 of the Code of Federal Regulations, Part 660, Subpart G (61FR34572, July 2, 1996), Vol. 74, No. 43, dated March 6, 2009 as amended by Federal Regulations; to determine regulations applicable to this fishery.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 496.138, 496.146, 506.119

Stats. Implemented: ORS 496.162 & 506.129

Hist.: FWC 82-1993, f. 12-22-93, cert. ef. 1-1-94; Renumbered from 635-39-105 - 635-39-135; FWC 22-1995, f. 3-7-95, cert. ef. 3-10-95; FWC 77-1995, f. 9-13-95, cert. ef. 1-1-96; FWC 72-1996, f. 12-31-96, cert. ef. 1-1-97; FWC 25-1997, f. 4-22-97, cert. ef. 5-1-97; FWC 75-1997, f. 12-31-97, cert. ef. 1-1-98; DFW 91-1998, f. & cert. ef. 11-25-98; DFW 96-1999, f. 12-27-99, cert. ef. 1-1-00; DFW 98-1999, f. 12-27-99, cert. ef. 1-1-00; DFW 81-2000, f. 12-22-00, cert. ef. 1-1-01; DFW 118-2001, f. 12-24-01, cert. ef. 1-1-02; DFW 26-2002, f. & cert. ef. 3-21-02; DFW 130-2002, f. 11-21-02, cert. ef. 1-1-03; DFW 125-2003, f. 12-11-03, cert. ef. 1-1-04; DFW 117-2004, f. 12-13-04, cert. ef. 1-1-05; DFW 120-2004, f. 12-13-04, cert. ef. 1-1-05; DFW 33-2005(Temp), f. 4-29-05, cert. ef. 5-1-05 thru 10-27-05; DFW 54-2005(Temp), f. 6-10-05, cert. ef. 6-12-05 thru 11-30-05; DFW 56-2005, f. 6-21-05, cert. ef. 7-1-05; DFW 71-2005(Temp), f. & cert. ef. 7-7-05 thru 11-30-05; DFW 89-2005(Temp), f. & cert. ef. 8-12-05 thru 12-12-05; DFW 136-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 138-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 79-2006, f. 8-11-06, cert. ef. 1-1-07; DFW 134-2006(Temp), f. 12-21-06, cert. ef. 1-1-07 thru 6-29-07; DFW 3-2007, f. & cert. ef. 1-12-07; DFW 136-2007, f. 12-31-07, cert. ef. 1-1-08; DFW 156-2008, f. 12-31-08, cert. ef. 1-1-09; DFW 39-2009, f. & cert. ef. 4-27-09; DFW 144-2009, f. 12-8-09, cert. ef. 1-1-10; DFW 32-2010, f. & cert. ef. 3-15-10; DFW 37-2010, f. 3-30-10, cert. ef. 4-1-10; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

635-039-0090

Inclusions and Modifications

(1) The 2011 Oregon Sport Fishing Regulations provide requirements for sport fisheries for marine fish, shellfish, and marine invertebrates in the Pacific Ocean, coastal bays, and beaches, commonly referred to as the Marine Zone. However, additional regulations may be adopted in this rule division from time to time and to the extent of any inconsistency, they supersede the 2011 Oregon Sport Fishing Regulations.

(2) For the purposes of this rule, a “sport harvest cap” is defined as the amount that may be impacted (combined landings and other fishery related mortality) by the Oregon sport fishery in a single calendar year.

(a) For 2011, the sport harvest cap for black rockfish is 440.8 metric tons.

(3) For the purposes of this rule, “Other nearshore rockfish” means the following rockfish species: black and yellow (Sebastes chrysolmelas); brown (S. auriculatus); calico (S. dalli); China (S. nebulosus); copper (S. caurinus); gopher (S. carnatus); grass (S. rastelliger); kelp (S. atrovirens); olive (S. serranoides); quillback (S. maliger); and treefish (S. serriceps).

(4) For the purposes of this rule a “sport landing cap” is defined as the total landings for a given species, or species group, that may be taken in a single calendar year by the ocean boat fishery. For 2011 the sport landing caps are:

(a) Black rockfish and blue rockfish combined, 481.8 metric tons.

(b) Other nearshore rockfish, 13.6 metric tons.

(d) Greenling, 5.2 metric tons.

(5) In addition to the regulations for Marine Fish in the 2011 Oregon Sport Fishing Regulations, the following apply for the sport fishery in the Marine Zone in 2011:

(a) Lingcod (including green colored lingcod): 2 fish daily bag limit.

(b) All rockfish (“sea bass” “snapper”), greenling (“sea trout”), cabezon, skates, and other marine fish species not listed in the 2011 Oregon Sport Fishing Regulations in the Marine Zone, located under the category of Species Name, Marine Fish: 7 fish daily bag limit in aggregate (total sum or number), of which no more than one be a cabezon from April 1 through September 30. Retention of yelloweye rockfish and canary rockfish is prohibited.

(c) Flatfish (flounder, sole, sanddabs, turbot, and all halibut species except Pacific halibut): 25 fish daily bag limit in aggregate (total sum or number).

(d) Retention of all marine fish listed under the category of Species Name, Marine Fish, except Pacific cod, sablefish, herring, anchovy, smelt, sardine, striped bass, hybrid bass, and offshore pelagic species (excluding leopard shark and soupfin shark), is prohibited when Pacific halibut is retained on the vessel during open days for the all-depth sport fishery for Pacific halibut north of Humbug Mountain. Persons must also consult Title 50 of the Code of Federal Regulations, Part 300, Subpart E (61FR35550, July 5, 1996); and the annual Pacific Halibut Fishery Regulations as amended by Federal Regulations to determine all rules applicable to the taking of Pacific halibut.

(e) Harvest methods and other specifications for marine fish in subsections (5)(a), (5)(b) and (5)(c) including the following:

(A) Minimum length for lingcod, 22 inches.

(B) Minimum length for cabezon, 16 inches.

(D) May be taken by angling, hand, bow and arrow, spear, gaff hook, snag hook and herring jigs.

(E) Mutilating the fish so the size or species cannot be determined prior to landing or transporting mutilated fish across state waters is prohibited.

(f) Sport fisheries for species in subsections (5)(a), (5)(b) and (5)(c) and including leopard shark and soupfin shark are open January 1 through December 31, twenty-four hours per day, except that ocean waters are closed for these species during April 1 through September 30, outside of the 40 fathom curve (defined by latitude and longitude) as shown on Title 50 Code of Federal Regulations Part 660 Section 384 Vol. 71, No. 189, dated September 29, 2006. A 20 fathom, 25 fathom, or 30 fathom curve, as shown on Title 50 Code of Federal Regulations Part 660 Section 391 Vol. 71, No. 189, dated September 29, 2006 may be implemented as the management line as in-season modifications necessitate.

(g) The Stonewall Bank Yelloweye Rockfish Conservation Area (YRCA) is defined by coordinates specified in Title 50 Code of Federal Regulations Part 660 Section 390. Within the YRCA, it is unlawful to fish for, take, or retain species listed in subsections (5)(a), (5)(b) and (5)(c) of this rule, leopard shark, soupfin shark, and Pacific halibut using recreational fishing gear. A vessel engaged in recreational fishing within the YRCA is prohibited from possessing any species listed in subsections (5)(a), (5)(b) and (5)(c) of this rule, leopard shark, soupfin shark, and Pacific halibut. Recreational fishing vessels in possession of species listed in subsections (5)(a), (5)(b) and (5)(c) and including leopard shark, soupfin shark, and Pacific halibut may transit the YRCA without fishing gear in the water.

(6) Razor clams may be taken by hand, shovel, or cylindrical gun or tube. The opening of the gun/tube must be either circular or elliptical with the circular gun/tube opening having a minimum outside diameter of 4 inches and the elliptical gun/tube opening having minimum outside diameter dimensions of 4 inches long and 3 inches wide.

[Publications: Publications referenced are available from the agency.]

[ED. NOTE: Tables referenced are available from the agency.]

Stat. Auth.: ORS 496.138, 496.146, 497.121 & 506.119

Stats. Implemented: ORS 496.004, 496.009, 496.162 & 506.129

Hist.: FWC 82-1993, f. 12-22-93, cert. ef. 1-1-94; FWC 22-1994, f. 4-29-94, cert. ef. 5-2-94; FWC 29-1994(Temp), f. 5-20-94, cert. ef. 5-21-94; FWC 31-1994, f. 5-26-94, cert. ef. 6-20-94; FWC 43-1994(Temp), f. & cert. ef. 7-19-94; FWC 83-1994(Temp), f. 10-28-94, cert. ef. 11-1-94; FWC 95-1994, f. 12-28-94, cert. ef. 1-1-95; FWC 22-1995, f. 3-7-95, cert. ef. 3-10-95; FWC 25-1995, f. 3-29-95, cert. ef. 4-1-95; FWC 26-1995, 3-29-95, cert. ef. 4-2-95; FWC 36-1995, f. 5-3-95, cert. ef. 5-5-95; FWC 43-1995(Temp), f. 5-26-95, cert. ef. 5-28-95; FWC 46-1995(Temp), f. & cert. ef. 6-2-95; FWC 58-1995(Temp), f. 7-3-95, cert. ef. 7-5-95; FWC 77-1995, f. 9-13-95, cert. ef. 1-1-96; FWC 28-1996(Temp) , f. 5-24-96, cert. ef. 5-26-96; FWC 30-1996(Temp), f. 5-31-96, cert. ef. 6-2-96; FWC 72-1996, f. 12-31-96, cert. ef. 1-1-97; FWC 75-1997, f. 12-31-97, cert. ef. 1-1-98; DFW 100-1998, f. 12-23-98, cert. ef. 1-1-99; DFW 68-1999(Temp), f. & cert. ef. 9-17-99 thru 9-30-99; administrative correction 11-17-99; DFW 96-1999, f. 12-27-99, cert. ef. 1-1-00; DFW 83-2000(Temp), f. 12-28-00, cert. ef. 1-1-01 thru 1-31-01; DFW 1-2001, f. 1-25-01, cert. ef. 2-1-01; DFW 118-2001, f. 12-24-01, cert. ef. 1-1-02; DFW 26-2002, f. & cert. ef. 3-21-02; DFW 130-2002, f. 11-21-02, cert. ef. 1-1-03; DFW 35-2003, f. 4-30-03, cert. ef. 5-1-03; DFW 114-2003(Temp), f. 11-18-03, cert. ef. 11-21-03 thru 12-31-03; DFW 125-2003, f. 12-11-03, cert. ef. 1-1-04; DFW 128-2003, f. 12-15-03, cert. ef. 1-1-04; DFW 83-2004(Temp), f. 8-17-04, cert. ef. 8-18-04 thru 12-31-04; DFW 91-2004(Temp), f. 8-31-04, cert. ef. 9-2-04 thru 12-31-04; DFW 97-2004(Temp), f. 9-22-04, cert. ef. 9-30-04 thru 12-31-04; DFW 117-2004, f. 12-13-04, cert. ef. 1-1-05; DFW 34-2005(Temp), f. 4-29-05, cert. ef. 5-1-05 thru 10-27-05; DFW 75-2005(Temp), f. 7-13-05, cert. ef. 7-16-05 thru 12-31-05; DFW 87-2005(Temp), f. 8-8-05, cert. ef. 8-11-05 thru 12-31-05; DFW 121-2005(Temp), f. 10-12-05, cert. ef. 10-18-05 thru 12-31-05; DFW 129-2005(Temp), f. & cert. ef. 11-29-05 thru 12-31-05; DFW 136-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 138-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 141-2005(Temp), f. 12-12-05, cert. ef. 12-30-05 thru 12-31-05; Administrative correction 1-19-06; DFW 61-2006, f. 7-13-06, cert. ef. 10-1-06; DFW 65-2006(Temp), f. 7-21-06, cert. ef. 7-24-06 thru 12-31-06; DFW 105-2006(Temp), f. 9-21-06, cert. ef. 9-22-06 thru 12-31-06; DFW 134-2006(Temp), f. 12-21-06, cert. ef. 1-1-07 thru 6-29-07; DFW 3-2007, f. & cert. ef. 1-12-07; DFW 10-2007, f. & cert. ef. 2-14-07; DFW 66-2007(Temp), f. 8-6-07, cert. ef. 8-11-07 thru 12-31-07; DFW 136-2007, f. 12-31-07, cert. ef. 1-1-08; DFW 73-2008(Temp), f. 6-30-08, cert. ef. 7-7-08 thru 12-31-08; DFW 97-2008(Temp), f. 8-18-08, cert. ef. 8-21-08 thru 12-31-08; DFW 105-2008(Temp), f. 9-4-08, cert. ef. 9-7-08 thru 12-31-08; DFW 156-2008, f. 12-31-08, cert. ef. 1-1-09; DFW 7-2009(Temp), f. & cert. ef. 2-2-09 thru 7-31-09; DFW 39-2009, f. & cert. ef. 4-27-09; DFW 110-2009(Temp), f. 9-10-09, cert. ef. 9-13-09 thru 12-31-09; DFW 144-2009, f. 12-8-09, cert. ef. 1-1-10; DFW 103-2010(Temp), f. 7-21-10, cert. ef. 7-23-10 thru 12-31-10; DFW 157-2010, f. 12-6-10, cert. ef. 1-1-11

Rule Caption: Modifications to By-catch Reduction Device Rules for the Commercial Pink Shrimp Fishery.

Adm. Order No.: DFW 158-2010

Filed with Sec. of State: 12-6-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 11-1-2010

Rules Amended: 635-005-0190

Subject: On May 17, 2010, the National Marine Fisheries Service (NMFS) listed the southern District Population Segment (DPS) of eulachon smelt as “threatened” under the Endangered Species Act (ESA). By-catch of eulachon smelt in the shrimp trawl fishery has been reduced greatly since a 2003 requirement that shrimp trawlers use by-catch reduction devices (BRDs). In order to conserve eulachon smelt and reduce the likelihood of NMFS issuing protective regulations for the shrimp trawl fishery, by-catch in this fishery needs to be reduced to the maximum extent practicable, given current technology.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-005-0190

Fishing Gear

(1) It is unlawful to take pink shrimp for commercial purposes by any means other than trawl net or pots.

(2) It is unlawful to fish with trawl gear for pink shrimp for commercial purposes unless an approved rigid-grate bycatch reduction device is used in each net. A rigid-grate bycatch reduction device uses a rigid panel of narrowly spaced bars to guide fish out of an escape hole in front of the panel, generally in the top of the net. The panel may be hinged to facilitate rolling over a net reel. An approved rigid-grate bycatch reduction device must meet the following criteria:

(a) The exterior circumference of the rigid panel must fit completely within the interior circumference of the trawl net, such that there is no space between the panel and the net that will allow a 110 mm sphere to pass beyond the panel, into the terminal area of the codend;

(b) None of the openings between the bars in the rigid panel may exceed:

(A) 1.0 inches, effective April 1, 2011.

(B) 0.75 inches, effective April 1, 2012.

(d) The escape hole must be forward of the rigid panel and must begin within four meshes of the furthest aft point of attachment of the rigid panel to the net.

(3) All bycatch reduction devices and codends used for trawl fishing for pink shrimp must be readily accessible and made available for inspection at the request of an authorized agent of the state. No trawl gear may be removed from the vessel prior to offloading of shrimp.

(4) It is unlawful to modify bycatch reduction devices in any way that interferes with their ability to allow fish to escape from the trawl, except for the purpose of testing the bycatch reduction device to measure shrimp loss. Authorized testing of bycatch reduction devices must meet the following criteria:

(a) Testing is allowed by special permit only, consistent with OAR 635-006-0020.

(b) For vessels fishing two nets simultaneously (double-rigged boats), while testing under the authority of a special permit, only one net may contain a disabled bycatch reduction device; the other net must be fishing a fully functional bycatch reduction device as described in subsection (2).

Stat. Auth.: ORS 506.119 & 506.129

Stats. Implemented: ORS 506.119 & 506.129

Hist.: FC 241, f. 4-5-72, ef. 4-15-72, Renumbered from 625-010-0245, Renumbered from 635-036-0155; FWC 30-1985, f. 6-27-85, ef. 7-1-85; DFW 31-2001, f. & cert. ef. 5-4-01; DFW 63-2001(Temp), f. 7-24-01, cert. ef. 8-1-01 thru 10-31-01; DFW 56-2002(Temp), f. 5-29-02, cert. ef. 7-1-02 thru 10-31-02; DFW 24-2003, f. & cert. ef. 3-26-03; DFW 158-2010, f. 12-6-10, cert.ef. 1-1-11

Rule Caption: Amend the Fish Hatchery Management Policy Spawning and Rearing Protocol to Minimize Surplus Eggs/Fish.

Adm. Order No.: DFW 159-2010

Filed with Sec. of State: 12-6-2010

Certified to be Effective: 12-6-10

Notice Publication Date: 11-1-2010

Rules Amended: 635-007-0545

Rules Repealed: 635-007-0825, 635-007-0830

Subject: Rule modifications set policy to minimize surplus eggs and fish by correctly forecasting the potential for and magnitude of loss in incubation and rearing. Direction for management of any surplus in harvest, conservation and/or resident stocks are consistent with direction in the Native Fish Conservation Policy. Further modifications incorporate relevant criteria derived from rules 635-007-0825 and 635-007-0830 which are themselves repealed.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-007-0545

Hatchery Program Management Plans

(1) The Department shall develop hatchery program management plans for all hatchery programs. Clear management objectives that describe the role and expectations for hatchery programs relative to species conservation, watershed health and fisheries shall be the foundation for all hatchery program management plans. A hatchery program management plan may be a Hatchery and Genetic Management Plan, a Lower Snake River Compensation Plan annual operating plan, an aspect of a conservation plan developed under the Native Fish Conservation Policy (OAR 635-007-0502 through -0506) or similar document which describes the program’s objectives, fish culture operations, facilities operations, and monitoring and evaluation, as more fully detailed in subsections (2) through (24) of this rule.

Planning and Coordination of Hatchery Programs.

(2) When developing hatchery program management plans, the Department shall use the most up to date and reliable scientific information and seek the input and involvement of appropriate tribal, state and federal management partners, university programs and the public.

(3) The Native Fish Conservation Policy (OAR 635-007-0502 through -0506) provides the primary process for planning and coordinating hatchery programs, but these programs shall also be coordinated with obligations arising in other forums (e.g., U.S. v. Oregon, Lower Snake River Compensation Plan, Pacific Salmon Treaty) to avoid inconsistency and duplication.

(4) Coordination objectives include:

(a) Efficient use of resources (including sharing of facilities, staff, equipment and supplies);

(b) improved communication among managing entities to share information and experience, jointly resolve issues, and promote common objectives pursued at local and regional scales.

(5) Hatchery program management plans shall be submitted to and approved (or modified) by the Fish Division. The Fish Division may waive the requirement to include specific elements of a hatchery program management plan upon a determination that the requirement would provide no appreciable benefit to hatchery management or native fish conservation.

(6) The Department shall continue to operate a hatchery program according to existing statutes, administrative rules, Commission directives, and binding agreements until that program’s plan is approved.

Hatchery Program Objectives and Types.

(7) Hatchery program objectives and types shall be based on fish management objectives established via conservation plans (OAR 635-007-0505) or other binding agreements. Until conservation plans or other agreements are in place, hatchery program objectives and types will be based on existing statutes, rules, Commission directives and current management direction.

(8) Hatchery program management plans shall include measurable criteria relating to the following general objectives:

(a) Conservation and/or fishery benefits;

(b) a net survival advantage (egg to adult) over naturally produced fish;

(c) minimal adverse interactions (e.g., competition, predation, genetic introgression, and disease amplification) of hatchery programs with naturally produced native fish populations;

(d) minimal adverse effects (e.g., water quality and quantity, solid and chemical wastes and fish passage) of hatchery facility operations on watershed health and native fish populations; and

(e) sustainability of hatchery programs over time.

(9) Department hatchery programs will generally be distinguished as harvest or conservation hatchery programs. A single hatchery may have both harvest and conservation hatchery programs. If harvest and conservation programs are not distinguished, the Department shall clarify harvest and conservation objectives and their relative priorities.

(10) Harvest hatchery programs operate to enhance or maintain fisheries without impairing naturally reproducing populations. Operations shall integrate hatchery and natural production systems (e.g., locally-derived hatchery broodstocks, rearing containers simulating natural characteristics) if necessary for conservation, within funding and facility constraints and consistent with fishery management objectives. Harvest hatchery programs shall also separate (e.g., temporally, spatially, visually) hatchery produced and naturally produced native fish in fisheries and on spawning grounds as necessary for conservation. The hatchery program management plan may be designated as one of the following harvest hatchery program types:

(a) Harvest augmentation, which is used to increase fishing and harvest opportunities where there is no mitigation program in place;

(b) mitigation, which is used pursuant to an agreement to provide fishing and harvest opportunities lost as a result of habitat deterioration, destruction or migration blockage.

(11) Conservation hatchery programs operate to maintain or increase the number of naturally produced native fish without reducing the productivity (e.g., survival) of naturally produced fish populations. Conservation hatchery programs shall integrate hatchery and natural production systems to provide a survival advantage with minimal impact on genetic, behavioral and ecological characteristics of targeted populations. Implementation shall proceed with caution and include monitoring and evaluation to gauge success in meeting goals and control risks. Long-term conservation success shall be tied to remediating causes of the decline that resulted in the need for hatchery intervention. Once goals are met then the hatchery program will be discontinued. The hatchery program management plan may be designated as one of the following conservation hatchery program types:

(a) Supplementation, which routes a portion of an imperiled wild population through a hatchery for part of its life cycle to gain a temporary survival boost, or brings in suitable hatchery produced fish or naturally produced native fish from outside the target river basin to supplement the imperiled local population;

(b) restoration, which outplants suitable non-local hatchery produced or naturally produced native fish to establish a population in habitat currently vacant for that native species using the best available broodstock;

(c) captive brood, which takes a portion or all of an imperiled wild population into a protective hatchery environment for the entire life cycle to maximize survival and the number of progeny produced;

(d) captive rearing, which takes a portion of an imperiled wild population into a protective hatchery environment for only that part of its life cycle that cannot be sustained in the wild;

(e) egg banking, which temporarily removes a naturally produced native fish population from habitats that cannot sustain it and relocates the population to another natural or artificial area that can support the population;

(f) cryopreservation, which freezes sperm from naturally produced native fish for later use in conservation hatchery programs;

(g) experimental, which investigates and resolves uncertainties relating to the responsible use of hatcheries as a management tool for fish conservation and use.

Fish Culture Operations.

(12) Fish culture operations shall comply with fish health requirements of OAR 635-007-0549.

(13) Broodstock selection and collection. Hatchery program management plans shall identify the broodstock best able to meet the objectives of the type of program in which the broodstock will be used.

(a) For harvest hatchery programs, broodstock shall be used that best meet fishery objectives, consistent with conservation objectives to ensure risk to naturally produced native fish and their watersheds is within acceptable and clearly defined limits.

(A) For some harvest hatchery programs, fishery and conservation objectives will be best met using existing hatchery broodstocks and managing for minimal spatial or temporal overlap of hatchery produced and naturally produced native fish in spawning areas.

(B) For other harvest hatchery programs, fishery and conservation objectives will be best met using broodstocks derived from, or transitioning to, naturally produced native fish from the local watershed. This approach shall not be used if available data indicates the donor wild population will be impaired, or if conservation objectives are better met with existing hatchery broodstocks, or if hatchery programs are located in areas with too few naturally produced native fish to supply the hatchery broodstock;

(b) For conservation hatchery programs, broodstock shall be derived from the wild population targeted for hatchery intervention, or from nearby wild or hatchery populations with desired characteristics if the targeted wild population is extirpated or too depressed to provide brood fish;

(c) Broodstock maintenance shall be consistent with the fishery and conservation objectives established for the hatchery program.

(A) Hatchery program management plans shall identify effective population size targets and other strategies to reduce risk of inbreeding depression, genetic drift and domestication for broodstocks developed under subsection (a)(A).

(B) Hatchery program management plans shall identify target and allowable proportions of hatchery produced and naturally produced native fish incorporated into broodstocks developed under subsections (13)(a)(B) and (13)(b), consistent with conservation plan objectives.

(d) Broodstock collected shall represent the genetic variability of the donor stock by taking an unbiased representative sample with respect to run timing, size, gender, age and other traits important for long-term fitness of the population. The Fish Division may approve a deviation from this subsection if necessary to shift run timing and other characteristics of long-term hatchery broodstocks to better coincide with characteristics of wild populations in the watershed or to meet fish management goals. Hatchery program management plans shall explain the reason for any deviations;

(e) Facilities and methods used to collect broodstock shall minimize stress and maximize survival of fish to spawning, consistent with management objectives.

(14) Disposition of adult hatchery produced fish returning to hatchery facilities. Adult hatchery produced fish returning to collection facilities shall be used to meet program objectives and, if available, provide other ecological, societal and program benefits, consistent with objectives for watershed health and native fish conservation.

(a) Hatchery programs will be managed to meet, but not exceed, program objectives for returning adult fish. Environmental variation and other factors outside of management control may result in significantly less or more fish than planned.

(b) Consistent with subsection (7) of this rule, the numbers of returning adults to be collected and held for spawning shall be determined for each facility as part of the annual production planning process in coordination with hatchery managers, hatchery coordinators, district biologists, Fish Division staff, and co-managers where appropriate.

(c) Adult hatchery produced fish returning to hatchery facilities shall be allocated among the categories of uses described in order of preference in subsections (14)(d) and (14)(e). The Department need not satisfy all potential uses within a category before providing fish to uses in lower categories. The Fish Division may approve additional uses or deviations from the stated order of preference to satisfy agreements with management partners, respond to unique situations or respond to unforeseen circumstances. The final disposition of all surplus adult hatchery fish shall be reported on in the Fish Propagation Annual Report.

(d) Order of preference for disposition of adult hatchery produced fish returning to or collected at harvest hatchery program facilities:

(A) meet broodstock needs for the program;

(B) release live, spawned fish back into the wild if specified in management plans for species able to spawn more than once;

(D) provide additional fishing opportunities consistent with management plans (e.g., Fishery Management and Evaluation Plans);

(E) allow hatchery produced fish to spawn naturally at locations and in numbers identified in existing fish management plans or conservation plans developed through the process outlined in the Native Fish Conservation Policy (OAR 635-007-0505);

(F) place carcasses in natural spawning and rearing areas to enhance nutrient recycling, consistent with Department of Environmental Quality requirements, management plans and pathology constraints identified in OAR 635-007-0549;

(G) provide for experimental, scientific or educational uses identified in conservation plans, management plans or other Department agreements;

(H) sell eggs and carcasses from selected facilities to provide revenues to support hatchery programs and facilities;

(I) provide fish to charitable food share programs benefiting needy Oregonians;

(J) provide fish for animal feed to animal rehabilitation shelters, zoos, or other such operations;

(K) dispose of fish in a landfill or at a rendering plant.

(e) Order of preference for disposition of adult hatchery produced fish returning to or collected at conservation hatchery program facilities:

(A) Meet natural spawning objectives of the specific hatchery program as identified in conservation plans;

(B) meet hatchery broodstock needs for the specified conservation hatchery program management plan;

(C) release live, spawned fish back into the wild if specified in conservation plans for species able to spawn more than once;

(D) place carcasses in natural spawning and rearing areas to enhance nutrient recycling, consistent with Department of Environmental Quality requirements, management plans and pathology constraints identified in OAR 635-007-0549;

(E) provide fish for tribal ceremonial and subsistence use;

(F) provide additional fishing opportunities consistent with fishery management plans (e.g., Fishery Management and Evaluation Plans).

(G) provide for experimental, scientific or educational uses identified in conservation plans, management plans or other Department agreements;

(H) sell eggs and carcasses to provide revenues to support hatchery programs and facilities;

(I) provide fish to charitable food share programs benefiting needy Oregonians;

(J) provide fish for animal feed to animal rehabilitation shelters, zoos, or other such operations;

(K) dispose of fish in a landfill or at a rendering plant.

(f) Department staff shall use standard, professionally accepted practices (such as sharp blow to head, electrical current or anesthetic overdose) to kill fish at hatchery facilities.

(15) Spawning protocols.

(a) Hatchery program management plans shall include a description of the abundance, size, age structure, gender ratios, fecundity, fertility, and spawning pairings of the broodstock.

(b) A 1:1 male-to-female spawning ratio (single pair mating, unpooled gametes) is preferred, although for harvest hatchery programs with large spawning populations (greater than 300 females) a 1:3 spawning ratio is acceptable.

(c) For critically small populations, a matrix spawning strategy shall be used to enhance effective population size and reduce variability of survival among family units.

(d) Conservation hatchery programs may use natural spawning within natural or engineered spawning channels in an attempt to mimic natural mate selection, gender ratio, age structure, spawn timing and preferred spawning area characteristics of wild populations.

(e) Consistent with subsection (7) of this rule, the number of eggs to be collected during spawning operations shall be determined for each facility as part of the department’s annual production planning process. The following guidelines shall be used to set egg collection requirements to meet individual hatchery program objectives:

(A) Preliminary egg numbers to be collected to meet hatchery program objectives shall be determined for each facility as part of the department’s annual production planning process in coordination with hatchery managers, hatchery coordinators, district biologists, Fish Division staff and co-managers where appropriate.

(B) Additional eggs to be collected to compensate for predicted egg and fish losses during the hatchery rearing cycle will be developed from survival estimates compiled by the ODFW Fish Health section and approved during the annual production Planning process.

(C) Surplus eggs from harvest hatchery stocks will be removed from production and disposed of immediately. Disposition of surplus eggs from conservation hatchery stocks shall be determined through the department’s annual production planning process, consistent with direction in the Native Fish Conservation Policy and the Hatchery Management Policy regarding the use of conservation hatcheries. Disposition of surplus resident eggs shall be determined based on statewide fish management needs. The final disposition of all surplus eggs shall be reported on in the Fish Propagation Annual Report.

(16) Incubation protocols.

(a) Incubation methods shall be selected to best meet program objectives, consistent with facility and funding constraints. These methods may include single bucket incubation (for isolation of a single female’s eggs), multiple vertical incubators, in-stream hatchboxes, or other methods suited to the available facilities. The Integrated Hatcheries Operations Team Policies and Procedures (IHOT 1995) provide acceptable, but not exclusive, guidance on water flows and egg-to-fry capacities for incubation systems. The hatchery program management plan shall include a description of and explanation for the incubation system identified in the plan.

(b) The Department shall continue providing eggs for educational classroom incubators and in-stream incubators (e.g., hatch boxes) for selected stocks in selected watersheds associated with the Salmon and Trout Enhancement Program (STEP). All STEP incubator programs shall be consistent with existing management plans or new conservation plans and hatchery program management plans.

(17) Rearing protocols.

(a) Hatchery program management plans shall describe rearing facilities and methods selected for the program and specific rearing standards used to gauge success meeting program objectives.

(b) Rearing capacity of hatchery programs shall be based on the number of fish that can be produced without adversely affecting fish growth and survivability necessary to meet program objectives.

(c) Best management practices may dictate that, based on known and anticipated disease or predation losses, fish in excess of planned production goals be reared well past the initial ponding date. Hatchery managers, in coordination with hatchery coordinators and Fish Division staff, will establish these numbers for each facility based on survival estimates compiled by ODFW Fish Health section. Surpluses held to meet production goals should be disposed of at the earliest point in the rearing cycle. At the point in rearing cycle that the risk of these known hazards is past, these surpluses should be removed from the production cycle. Consistent with subsection (7), disposition of surplus fish from harvest hatchery programs shall be determined by Regional and Fish Division staff on a individual basis, with emphasis on minimizing conservation risks while providing angling opportunities where possible (e.g., stocked in closed water bodies). For conservation hatchery programs, disposition of surplus fish shall be determined through the department’s annual production planning process, consistent with direction in the Native Fish Conservation Policy and the Hatchery Management Policy regarding the use of conservation hatcheries. Disposition of resident fish shall be determined based on statewide fish management needs. The final disposition of all surplus fish shall be reported on in the Fish Propagation Annual Report.

(d) Water replacement time and velocity shall be managed to provide adequate levels of dissolved oxygen and the reduction of metabolic waste products that are harmful to fish.

(e) Experimental rearing techniques may be investigated at some hatcheries, particularly for conservation hatchery programs, to simulate natural rearing characteristics and fish behavior traits while ensuring adequate fish health, survival and production numbers to meet program objectives.

(f) Fish food and feeding shall be managed to meet production objectives (e.g., fish number, size, growth rate, health and condition), minimize waste and maintain water quality.

(g) The Department shall purchase the best fish feed products available for the best price while considering service delivery, maintenance of competition and innovation among fish feed vendors, and state preferences for recycled products. Qualifying feed manufacturers must monitor the accumulation of toxins in the fish feed they provide, and comply with standards specified by the Department.

(h) The Department shall have standardized procedures for conducting feed trials comparing feed types and coordinate results among fish hatchery managers and STEP facility managers. The Department shall maintain a centralized database of fish feed purchases and fish feed trial results.

(i) Hatchery programs may include an experimental feeding regime designed to simulate natural diets and feeding behavior (such as sub-surface feeding techniques) to align growth, physiology and maturity with natural schedules.

(18) Fish marking.

(a) Hatchery produced fish shall be marked as required to facilitate mixed stock fisheries, research, distinction of hatchery produced and naturally produced native fish throughout their life cycle as necessary for conservation, and evaluation of program objectives.

(b) The Department shall use precise fish marking methods consistent with industry standards and management needs. Mark quality (e.g., fin excision, tag placement, tag retention) shall be monitored during the marking process and prior to fish releases.

(19) Fish transfers and releases.

(a) Hatchery program management plans shall specify targets for the number, size, quality, timing, location and release strategy of fish released, based on fish management objectives established for that program (e.g., native fish conservation plans, brood source objectives, production agreements, harvest management plans, mitigation agreements).

(b) Hatchery program management plans shall include protocols to minimize stress and direct or delayed mortality associated with collecting, handling, loading, transporting and releasing fish.

(c) The Fish Division may approve emergency contingency release plans in the event of unforeseen catastrophic events at a facility.

(d) Transfer and release of any life stage of fish shall meet fish health requirements of OAR 635-007-0549.

(20) Predator control at hatchery facilities.

(a) Hatchery operations shall include strategies to reduce excessive loss of fish to predation and limit opportunities for predators to introduce pathogens to the rearing environment, within funding, facility and permit constraints.

(b) Some hatchery programs, particularly conservation hatchery programs, may experiment with using natural predators to help avoid domestication, reduce deleterious traits and train hatchery produced fish to improve post-release survival and reduce behavioral differences between hatchery produced and naturally produced native fish.

Hatchery Facilities Operations.

(21) Hatchery facility operations shall comply with fish health requirements of OAR 635-007-0549.

(22) Hatchery program management plans shall describe hatchery facilities and operations to optimize fish culture operations, comply with fish health requirements described in OAR 635-007-0549, and comply with legal obligations concerning water rights, water use reporting, chemical use and reporting, fish passage and water quality standards.

(23) Reliable hatchery alarm and security systems shall be required as necessary to minimize risk of egg and fish mortalities caused by loss of water supplies or risk of vandalism and poaching. All hatchery incubation systems, rearing containers and adult fish facilities at Department hatcheries shall have alarm systems. Fish Division may grant exceptions for STEP hatch-box facilities or other temporary or remote facilities.

(24) Hatchery water intakes and outfalls shall be screened to minimize the risk of unintended fish entering or escaping from the facility. Outfalls of fish rearing containers shall be double screened if used for fish from outside the basin that could jeopardize endemic stocks if escapes occurred.

(25) The Department shall identify hatchery facility maintenance, modifications and upgrades necessary to comply with program objectives and other legal requirements.

(26) Hatcheries shall provide informational signs and literature, guided tours as allowed by staffing constraints and other programs to educate the public about fish and wildlife stewardship.

(27) Additional provisions specific to hatchery trout programs.

(a) The Department shall continue hatchery production of nonanadromous rainbow trout for consumptive recreational fisheries as an important and popular fish management tool.

(b) The Department shall reduce potential impacts to wild trout, char and steelhead in streams and maximize returns to the creel such as by rearing and releasing trout for target fisheries in standing water bodies (i.e., lakes, ponds, and reservoirs) and marking trout for targeted fisheries.

(c) All trout the Department purchases for harvest augmentation from private sources must be genetically triploid, sterile rainbow trout.

Monitoring and Evaluation.

(28) The purpose of hatchery monitoring and evaluation programs shall be to gauge success meeting hatchery program and fish management objectives, improve understanding of the reasons for success or failure, contain risks within acceptable limits, and provide feedback to modify operations through time (adaptive management). Clear management objectives that describe the role and expectations for hatcheries relative to species conservation, watershed health and fisheries shall be the foundation for all hatchery monitoring and evaluation programs.

(29) Each hatchery program need not have its own individual monitoring and evaluation program if monitoring and evaluation on a landscape perspective provides adequate information to manage potential risks. The greater the uncertainty of the risks or results of a hatchery program, the greater the specificity of the monitoring and evaluation program must be. Each hatchery program management plan shall describe how the plan’s operations and objectives will be monitored and evaluated.

(30) Monitoring and evaluation programs shall use generally accepted scientific procedures and gather multi-generational information to evaluate hatchery programs relative to measurable criteria developed through OAR 635-007-0545.

(31) Monitoring hatchery produced fish and their performance may include, but is not limited to:

(a) Broodstock selection including but not limited to source, number, size, fecundity, life history, timing as percent of entire run, disease history, and disease treatment;

(b) pre-release performance (e.g., survival, growth, disease) by life stage;

(c) post-release survival to the adult life stage, catch distribution, fishery contributions, straying, and characteristics of adult fish (e.g., age structure, gender ratio, size, health).

(d) production advantage provided by the hatchery relative to natural production;

(e) water quality, flow and other physical conditions in the hatchery through the production cycle;

(f) impacts of operation of the hatchery facilities on the adjacent habitats;

(g) success of the hatchery program in meeting harvest and/or conservation program objectives.

(h) cost-benefit analysis of hatchery performance.

(32) Monitoring and evaluation to assess impacts of the hatchery program on naturally produced native fish may include, but is not limited to:

(a) Impacts of broodstock selection on wild populations;

(b) ecological interactions of hatchery produced and naturally produced native fish resulting in changes to phenotypic, genotypic, behavioral and survival characteristics;

(d) success of maintaining long-term fitness of wild populations;

(e) reproductive success and fitness of hatchery produced fish in the natural environment; and

(f) success maintaining or enhancing natural genetic variation and life history characteristics within and among wild populations.

(33) Results and evaluation of hatchery monitoring programs shall be compiled at intervals adequate to track success, contain risks and provide feedback for adaptive management. Monitoring results shall be made available to management partners and the public.

(34) Hatchery monitoring and evaluation programs shall complement and coordinate with specific research addressing key uncertainties about hatchery operations, uses and consequences. Research priorities shall focus on developing hatchery strategies that minimize the risk or maximize the benefit of hatchery actions to naturally produced native fish populations.

Stat. Auth.: ORS 496.012 & 496.138

Stats. Implemented: ORS 496.171, 496.172, 496.176, 496.182, 496.430, 496.435, 496.445, 496.450 & 496.455

Hist.: DFW 65-2003, f. & cert. ef. 7-17-03; DFW 159-2010, f. & cert. ef. 12-6-10

Rule Caption: Inseason Actions Implemented by the Federal Government for Commercial Groundfish Fisheries.

Adm. Order No.: DFW 160-2010(Temp)

Filed with Sec. of State: 12-7-2010

Certified to be Effective: 12-7-10 thru 12-31-10

Notice Publication Date:

Rules Amended: 635-004-0019

Rules Suspended: 635-004-0019(T)

Subject: The amended rule adopts in-season actions implemented by the federal government for Pacific ocean commercial groundfish fisheries, including changes to cumulative trip limits and RCA boundaries for limited entry non-whiting trawl fisheries and cumulative trip limits for commercial fixed gear fisheries.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-004-0019

Inclusions and Modifications

(1) OAR chapter 635, division 004, modifies or is in addition to provisions contained in Code of Federal Regulations, Title 50, Part 660, Subpart G, West Coast Groundfish Fisheries.

(2) The Code of Federal Regulations (CFR), Title 50, Part 660, Subpart G, provides requirements for commercial groundfish fishing in the Pacific Ocean off the Oregon coast. However, additional regulations may be promulgated subsequently, and these supersede, to the extent of any inconsistency, the Code of Federal Regulations.

(3) Notwithstanding the regulations as defined in OAR 635-004-0018, the National Oceanic and Atmospheric Administration (NOAA), by means of Federal Register/Vol. 75, No. 162/Monday, August 23, 2010, announced inseason management measures effective August 18, 2010, including, but not limited to, changes to cumulative trip limits for the limited entry fixed-gear sablefish fishery and lincod retention allowances for vessels fishing in the salmon troll fishery and operating outside of the non-trawl RCA.

(4) Notwithstanding the regulations as defined in OAR 635-004-0018, the National Oceanic and Atmospheric Administration (NOAA), by means of Federal Register/Vol. 75, No. 191/Monday, October 4, 2010, announced inseason management measures effective October 1, 2010, including, but not limited to, changes to cumulative trip limits for the limited entry non-whiting trawl fishery.

(5) Notwithstanding the regulations as defined in OAR 635-004-0018, the National Oceanic and Atmospheric Administration (NOAA), by means of Federal Register/Vol. 75, No. 232/Friday, December 3, 2010, announced inseason management measures effective December 1, 2010, including, but not limited to, changes in cumulative trip limits and RCA boundaries for limited entry non-whiting trawl fisheries and cumulative trip limits for commercial fixed gear fisheries.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 506.119

Stats. Implemented: ORS 506.109 & 506.129

Rule Caption: Inseason Closure to Commercial Dungeness Crab Fishing from Cape Blanco South to the Rogue River.

Adm. Order No.: DFW 161-2010(Temp)

Filed with Sec. of State: 12-9-2010

Certified to be Effective: 12-10-10 thru 2-16-11

Notice Publication Date:

Rules Amended: 635-005-0045

Subject: This amended rule implements an inseason closed area to commercial Dungeness crab from Cape Blanco to the mouth of the Rogue River from December 10, 2010 through January 15, 2011. The area closed is the area of known low quality to commercial crabbing. This closure will protect the portion of the fishing fleet that chooses to wait to fish the closed area by implementing a 30-day fair start provision.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-005-0045

Closed Season in Pacific Ocean and Columbia River

(1) In addition to any closures described in Section 3, it is unlawful to take, land or possess Dungeness crab for commercial purposes from the Pacific Ocean or Columbia River from August 15 through November 30.

(2) It is unlawful prior to January 1 to land or to receive, or to buy, Dungeness crab from a vessel that has not been certified by officials of the State of Oregon, Washington, or California to have been free of Dungeness crab on November 30, except as provided in section (3)(b) of this rule.

(3) Delay of Season Openings:

(a) The area from 42º 25’ 00” N. Lat. (mouth of the Rogue River) south to the Oregon/California border is open at 12:01 a.m. on December 1, 2010.

(b) The area from 42º 50’ 00” N. Lat. (at Cape Blanco) north to the Oregon/Washington border is open at 12:01 a.m. on December 1, 2010.

(c) The area between 42º 50’ 00” N. Lat. (Cape Blanco) south to 42º 25’ 00” (mouth of the Rogue River) is closed at 12:01 a.m. on December 10, 2010 until 12:01 a.m., January 15, 2011.

(d) It is unlawful for commercial purposes inside the area defined in section (3)(c) to:

(i) Deploy, retrieve or have present in the water Dungeness crab fishing gear as defined in 635-005-0055; or

(ii) Take, land, sell or buy Dungeness crab.

(e) Oregon Dungeness crab permitted vessels electing to fish in the area defined in section (3)(c) must not have fished, taken, landed or possessed Dungeness crab from Oregon, Washington or California waters before 12:01 a.m. on January 15, 2011.

(f) Oregon Dungeness crab permitted vessels electing to fish in areas defined in section (3)(a), (3)(b) or waters off Washington or California may not take, land or sell Dungeness crab in the area defined in section (3)(c) before 12:01 a.m. on February 15, 2011.

(4) Upon a determination by the Department that catch in Oregon’s Pacific Ocean Dungeness crab fishery after May 31 is greater than ten percent of the catch in the previous December 1 through May 31 period, the Director shall adopt a temporary rule closing the commercial season until the following December 1.

(5) Notwithstanding OAR 635-006-1095(7), the transfer of a permit from one vessel to another is suspended until February 15, 2011, except in the event a vessel is unintentionally destroyed due to fire, capsizing, sinking, or other event.

Stat. Auth.: ORS 506.119

Stats. Implemented: ORS 506.129

Hist.: FC 246, f. 5-5-72, ef. 5-15-72; FC 285(74-20), f. 11-27-74, ef. 12-25-74; FC 293(75-6), f. 6-23-75, ef. 7-11-75; FWC 30, f. & ef. 11-28-75; FWC 132, f. & ef. 8-4-77; FWC 30-1985, f. 6-27-1985, ef. 7-1-85, Renumbered from 625-010-0155, Renumbered from 635-036-0125; FWC 56-1982, f. & ef. 8-27-82; FWC 13-1983, f. & ef. 3-24-83; FWC 39-1983(Temp), f. & ef. 8-31-83; FWC 11-1984, f. 3-30-84, ef. 9-16-84, except section (1) per FWC 45-1984, f. & ef. 8-30-84; FWC 30-1985, f. 6-27-85, ef. 7-1-85; FWC 78-1986(Temp), f. & ef. 12-1-86; FWC 36-1987, f. & ef. 7-1-87; FWC 97-1987(Temp), f. & ef. 11-17-87; FWC 102-1988, f. 11-29-88, cert. ef. 12-29-88; FWC 119-1989(Temp), f. 11-29-89, cert. ef. 12-1-89; FWC 135-1991(Temp), f. 12-10-91, cert. ef. 12-11-91; FWC 136-1991(Temp), f. & cert. ef. 12-19-91; FWC 112-1992, f. 10-26-92, cert. ef. 11-1-92; FWC 70-1993, f. 11-9-93, cert. ef. 11-11-93; FWC 88-1994(Temp), f. 11-30-94, cert. ef. 12-1-94; FWC 89-1994(Temp), f. & cert. ef. 12-1-94; FWC 89-1995(Temp), f. 11-28-95, cert. ef. 12-1-95; FWC 1-1996(Temp), f. 1-11-96, cert. ef. 1-13-96; DFW 51-1998(Temp), f. 6-29-98, cert. ef. 7-1-98 thru 9-15-98; DFW 54-1998(Temp), f. & cert. ef. 7-24-98 thru 9-15-98; DFW 40-1999, f. & cert. ef. 5-26-99; DFW 70-2000, f. & cert. ef. 10-23-00; DFW 77-2000(Temp), f. 11-27-00, cert. ef. 12-1-00 thru 12-14-00; DFW 39-2002, f. & cert. ef. 4-26-02; DFW 128-2002(Temp), f. & cert. ef. 11-15-02 thru 1-31-03; DFW 129-2002(Temp), f. & cert. ef. 11-20-02 thru 1-31-03; DFW 132-2002(Temp), f. & cert. ef. 11-25-02 thru 1-31-03 (Suspended by DFW 133-2002(Temp)); DFW 133-2002(Temp), f. & cert. ef. 12-6-02 thru 1-31-03; DFW 117-2003(Temp), f. 11-25-03, cert. ef. 12-1-03 thru 2-29-04; Administrative correction 10-26-04; DFW 113-2004(Temp), f. 11-23-04, cert. ef. 12-1-04 thru 3-1-05; DFW 116-2004(Temp), f. & cert. ef. 12-8-04 thru 3-1-05; DFW 126-2004(Temp), f. & cert. ef. 12-21-04 thru 3-1-05; DFW 132-2004(Temp), f. & cert ef. 12-30-04 thru 3-1-05; Administrative correction, 3-18-05; DFW 129-2005(Temp), f. & cert. ef. 11-29-05 thru 12-31-05; DFW 140-2005(Temp), f. 12-12-05, cert. ef. 12-30-05 thru 5-31-06; Administrative correction 7-20-06; DFW 142-2008, f. & cert. ef. 11-21-08; DFW 161-2010(Temp), f. 12-9-10, cert. ef. 12-10-10 thru 2-16-11

Rule Caption: Medical Transfers of Bay Clam Dive Permits Allowed.

Adm. Order No.: DFW 162-2010(Temp)

Filed with Sec. of State: 12-15-2010

Certified to be Effective: 12-15-10 thru 6-12-11

Notice Publication Date:

Rules Amended: 635-006-1095

Subject: This amended rule allows the transfer of all commercial Bay Clam Dive permits, both individual and vessel, due to current medical conditions of the permit holder. Rules previously allowed transfers due to medical conditions for Individual Bay Clam Dive Permits only. Transfers are allowed for up to 90 days upon petition by the permittee.

Rules Coordinator: Therese Kucera—(503) 947-6033

635-006-1095

Transferability of Permits

Any transfer of a permit away from a vessel without the written consent of each person holding a security interest in such vessel is void. The following rules apply to transfer of limited entry fishery permits:

(1) Gillnet salmon — see ORS 508.793.

(2) Troll salmon — see ORS 508.822.

(3) Shrimp — see ORS 508. 907.

(4) Scallop — see ORS 508.864.

(5) Roe-herring:

(a) A permit is transferable to:

(A) A replacement vessel of the permit holder; or, upon request of a permit holder, the Department may authorize transfer of a permit to a replacement vessel owned by an individual other than the permit holder. However, any transfer of a permit away from a vessel without the written consent of each person holding a security interest in such vessel is void;

(B) The purchaser of the vessel when the vessel is sold.

(6) Sea Urchin:

(a) Medical Transfers: If the number of permits is at 31 or more, the Department may authorize a permit to be transferred to a specified individual for up to 90 days upon petition by a permittee on the form provided by the Department. The Department’s decision to allow a transfer shall be based on a finding that the current permit holder is unable to participate in the fishery due to injury or illness which prevents diving, based on medical evidence submitted by the permit holder and such other evidence the Department considers reliable. At the end of the transfer period, the transfer may be renewed by the Department to the original transferee or to a new transferee, provided that the permittee again submits medical evidence documenting that the injury or illness continues to prevent the permittee’s return to diving. There is a two-year limit on the eligibility of each individual permit for medical transfer status, beginning with the start date of the first medical transfer of that permit on or after January 1, 1996, and ending two years from that date. When the total number of permits reaches 30 or less the Department shall not allow any permit transfers for any medical reason;

(b) If the Department, or the Board, after review of a denial by the Department, allows a transfer, the original permit holder shall give written notice to the Department of the name, address and telephone number of the transferee. The original permit holder may, at any time during the transfer period specified in subsection (6)(a), request the Department to transfer the permit back to the original permit holder. Such transfer requires 30 days’ written notice to the Department. In any event, upon expiration of the transfer period specified in (6)(a), or upon cancellation of a transfer due to lack of medical evidence of continuing inability to dive, the permit shall revert automatically to the original permit holder, unless the transfer is renewed, as provided in subsection (6)(a) of this rule;

(c) The total landings of sea urchins by all transferees of a permit shall not exceed the greater of either of the following amounts:

(A) Up to 5,000 pounds per 90-day period, not to exceed 5,000 pounds annually; or

(B) Twenty-five percent of the amount landed by the original permit holder in the previous season’s catch, for each 90-day period.

(d) Combination Permit Transfers: If the number of permits is at 31 or more, the Department may transfer permits from one person to another as follows:

(A) The individual receiving the transferred permit (the purchaser) obtains no more than three total permits, each of which is valid for the current year in which the permit is purchased, from existing permit holders;

(B) The Department combines the three permits into a single new permit issued to the purchaser; and

(C) No transferred permit is valid for harvesting sea urchins until conditions (6)(d)(A) and (6)(d)(B) are met. Individual permits which are transferred may not be used individually and are not renewable. Once a permit has been transferred in accordance with (6)(d)(A) the individual to whom the permit has been transferred has up to 24 months from the date of transfer to combine it with two others to create a valid new permit.

(e) When the total number of permits reaches 30 or less, the Department shall approve the transfer of any permit to any purchaser of the permit, provided that not more than one sale or transfer of the permit occurs within that calendar year;

(f) Lottery-issued permit transfers: No permit issued to an individual through the lottery after 1998 may be transferred to another individual until a cumulative total of 20,000 pounds of sea urchins have been landed on commercial fish receiving tickets by the individual issued the permit through the lottery.

(7) Ocean Dungeness crab — see ORS 508.936 and:

(a) The vessel permit is transferable once in any 18-month period provided the vessel holding the permit has landed at least 500 pounds of ocean Dungeness crab into Oregon in each of two crab fishing seasons in the last five crab seasons which includes landings made during any season open at the time of application. Crab fishing season means ocean Dungeness crab season. However, the Board may waive the landing requirement as well as the 18-month waiting period for transfers, if the Board finds that strict adherence to these requirements would create undue hardship to the individual seeking to transfer a permit. The board also may delegate to the Department its authority to waive these requirements in such specific instances as the Board sets forth in a letter of delegation to the Department;

(b) The vessel permit is transferable:

(A) To another vessel; or

(B) To the purchaser of the vessel when the vessel is sold.

(A) Shall not be more than 10 feet longer than the vessel which held the permit on January 1, 2006, and

(B) Shall not be more than 99 feet in length.

(d) For the purpose of (7)(c)(A), the Commercial Fishery Permit Review Board may waive the boat length restriction if it finds that strict adherence would create undue hardship. For this purpose, undue hardship means significant adverse consequences caused by death, permanent disability injury or serious illness requiring extended care by a physician.

(e) Permits obtained as a result of qualifying under section (1)(e) of ORS 508.931 may only be transferred to vessels of a length of 26 feet or less;

(f) In the event a vessel is destroyed due to fire, capsizing, sinking or other event, the vessel owner has up to two years to transfer the ocean Dungeness crab fishery permit to a replacement vessel.

(8) Black rockfish/blue rockfish/nearshore fishery — see ORS 508.957.

(9) Brine shrimp fishery: Permits are transferable.

(10) Bay clam dive fishery:

(a) The permittee may request the Department to transfer, to a replacement vessel that is owned by the same person that owns the vessel to which the permit was originally issued, a bay clam dive permit up to two times per calendar year.

(b) In the event of the death of a permit holder, the permit of the deceased may be issued to an immediate family member upon request, validated by the Department’s receipt of a copy of the death certificate and the original permit.

(c) The Department may authorize transfer of a Bay Clam Dive permit for up to 90 days upon petition by the permittee on the form provided by the Department due to a medical condition.

(A) The Department’s decision to allow a transfer shall be based on a finding that the current permit holder is unable to participate in the fishery due to injury or illness which prevents diving, based on medical evidence submitted by the permit holder, and such other evidence the Department considers reliable.

(B) At the end of the transfer period, the Department may reinstate the permit to the original permit holder or to a new transferee, provided that the original permit holder again submits medical evidence documenting that the injury or illness continues to prevent their return to diving.

(C) There is a two-year limit on the eligibility of each individual permit for medical transfer status, beginning with the start date of the first medical transfer of that permit on or after January 1, 2006, and ending two years from that date.

(D) If the Department, after review of a denial by the Commission, allows a transfer, the original permit holder shall give written notice to the Department of the name, address and telephone number of the transferee. The original permit holder may, at any time during the transfer period specified in subsection (10)(c), request the Department reinstate the permit back to their possession. Such transfer requires 30 days’ written notice to the Department. In any event, upon expiration of the transfer period specified in (10)(c), or upon cancellation of a transfer due to lack of medical evidence of continuing inability to dive, the permit shall revert automatically to the original permit holder, unless the transfer is renewed, as provided in subsection (10)(c) of this rule.

(11) Sardine Fishery:

(a) Permits are transferable up to two times in one calendar year.

(b) Applications to transfer a sardine fishery permit shall only be accepted to vessels, which in the judgment of the Department, are capable of operating the gear necessary to legally participate in the fishery. Vessels of a size or design incapable of harvesting sardines are not eligible for transfer.

Stat. Auth.: ORS 506.109

Stats. Implemented: ORS 506.109, 506.129, 508.760 & 508.762

Hist.: FWC 3-1996, f. 1-31-96, cert. ef. 2-1-96; FWC 64-1996, f. 11-13-96, cert. ef. 11-15-96; DFW 94-1998, f. & cert. ef. 11-25-98; DFW 112-2003, f. & cert. ef. 11-14-03; DFW 137-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 139-2005, f. 12-7-05, cert. ef. 1-1-06; DFW 95-2006(Temp), f. & cert. ef. 9-8-06 thru 11-24-06; Administrative correction 12-16-06; DFW 23-2007(Temp), f. 4-9-07, cert. ef. 4-17-07 thru 10-13-07; Administrative correction 10-16-07; DFW 114-2007, f. & cert. ef. 10-25-07; DFW 162-2010(Temp), f. & cert. ef. 12-15-10 thru 6-12-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.