Skokomish Tribe’s 2011/2012
Sub-Tidal Geoduck Annual Regulation
S#11-027
1. Introduction
The Skokomish Tribe’s sub-tidal geoduck fishery has been designed to provide harvest opportunity for individual Tribal members as well as providing an overall benefit to the Tribe. The Skokomish Tribe’s 2011/2012 annual geoduck regulation’s purpose is to help maintain a sustainable geoduck fishery for future generations, enhance economic opportunity of commercial and subsistence fisheries for sub-tidal geoduck clams, and most of all provide the safest work environment possible for members of the Skokomish Tribe from March 1, 2011 through February 29, 2012.
2. Harvest Times and Areas
Harvest areas for the Skokomish Tribe include Washington Department of Fish and Wildlife marine shellfish management and catch reporting areas 25C south of a line from Olele Point to Foulweather Bluff, 27A, 27B and 27C. For the 2011/2012 geoduck season, the Skokomish Tribe intends to harvest geoduck at the Port Gamble Tract, #20000; the Port Gamble Inside tract, #20100; the Hazel Point (Toandos) tract, #21000; the Warrenville (Big Beef) tract, #21450; the Hood Head East tract, #20200; and the Case Shoal South tract, #20450.
3. Harvester and Diver Participation in the Geoduck Fishery
Only Skokomish Tribal members eighteen years of age or older will be authorized to participate and harvest geoduck in this fishery; non-member spouses who are eligible to fish under the Skokomish On-Reservation and Treaty Fishing Ordinance may assist in the fishery by acting as tenders on their member spouse’s vessel. Non-member spouses must be in the presence of the member spouse during the fishery.
In the event that an individual does not harvest more than 50% of his or her phase one quota for two years in a row, he or she will be ineligible for a quota the following year. If the failure to harvest more than 50% of the quota was due to injury or the loss of an immediate family member[1], which caused an inability to harvest, then the individual may go to the Fish Committee to file an appeal. If approved, that individual then may go to the Tribal Council for final approval to receive a quota. This must all occur prior to the March 15 deadline.
4. Certification of Harvesters and Divers
All harvesters will be subject to inspection and must comply with all applicable commercial diving safety standards and regulations promulgated by the Federal Occupational Safety and Health Administration (29 CFR § 1910.401 et seq. (Subpart T)).
All harvesters and divers must be certified by the Tribe by March 15, 2011 in order to participate in the current year’s fishery. Should the 15th of March fall on a Saturday or Sunday, the deadline will be the next business day. If a certification expires during the fishery, the diver must become recertified in order to continue diving. After March 15, a list of certified divers who are eligible to dive will be compiled and given to Public Safety, the fisheries enforcement officers, and posted at the Department of Natural Resources building. Certification will include successful completion with appropriate verification of the following:
5. Tender Participation in the Geoduck Fishery
All harvesters will be subject to inspection and must comply with all applicable commercial diving safety standards and regulations promulgated by the Federal Occupational Safety and Health Administration (29CFRI1910.401-1910.440 subpart T). Tender participation in this fishery will be limited to assisting with the operation of the vessel and harvesting equipment on the vessel only. Tenders may not enter the water to harvest geoduck; a tender may enter the water in an emergency situation to assist another diver who is in danger. All tenders must be certified by the Tribe prior to participation in the fishery. Certification must be completed by March 15 in order to participate in the current year’s fishery and will include successful completion with appropriate verification of the following:
6. Drug Testing[2]
All pre-season drug testing, as necessary to become certified to dive for geoduck, must be conducted at Mason General Hospital between February 1 and March 15. Proof of a negative drug test must be received by the Department of Natural Resources by 5:00 pm on March 15. Divers are responsible for the scheduling of all pre-season drug testing. In-season random drug testing will be performed by a certified drug screening company and will be scheduled and paid for by the Skokomish Tribe. Drug test results will be sent to the Deputy Director of Natural Resources and will only be used to determine the eligibility of individuals to either receive a quota or dive for their pounds.
The Deputy Director of the Department of Natural Resources will contact any individual who fails the drug test. Individuals who fail the original drug test will be given the opportunity to take one additional drug test for which they will be responsible for scheduling and paying. Individuals who fail both tests but wish to receive a quota must seek drug treatment at Tuwaduq Family Services, Squaxin Island Family Services, or the Chehalis Tribal Health Clinic. Proof of enrollment in a rehabilitation program must be received by the Assistant Director by 5:00 pm on March 26 in order to receive a quota for the 2011/2012 season. The individual will not be able to harvest his or her reserved quota until a medical clearance form provided by Skokomish Department of Natural Resources is signed by a Doctor certified to perform dive physicals and returned to the DNR Deputy Director. The doctor must indicate that the diver is not going to be a danger to him or her self or anyone else involved in the geoduck fishery as a result of using the specific drugs in question. Individuals who fail an in-season random drug test must provide a letter from a doctor stating that the individual has passed a drug test at a more recent date than the random drug test. Costs for the follow up drug test will be borne by the individual.
If as a result of the pre-season drug test an individual is found to have a drug in his or her system, they will be given a quota and be allowed to dive if they provide both of the following to the Deputy Director of Natural Resources:
1. A valid, current prescription for that drug. In the case of medical marijuana, a signed note from a doctor indicating that the marijuana has been prescribed for medical reasons will be accepted in lieu of an actual prescription note. A medical marijuana card will also be accepted.
2. A medical clearance form provided by Skokomish Department of Natural Resources signed by a Doctor certified to perform dive physicals must be provided to the DNR Deputy Director. The doctor must indicate that the diver is not going to be a danger to him or her self or anyone else involved in the geoduck fishery as a result of using the specific drugs in question.
Individuals who are legally using drugs may be subject to frequent in-season drug tests. The level of drugs in a diver’s system at the time of the original, pre-season drug test will be used as a baseline indicator. If an in-season drug test results in a level of the drug greater than 10% above the baseline, the individual will not be allowed to dive until a subsequent drug test, scheduled and paid for by the diver, is received by the Deputy Director indicating that the drug level is at or below the baseline level.
7. Harvest Vessel Restrictions
Only those vessels owned by Skokomish Tribal members and registered with the Tribe, in accordance with sections 7.02.071 (a) and (b) of the Skokomish On-Reservation and Treaty Fishing Ordinance, are eligible to participate in this fishery. All vessels shall comply with applicable commercial diving safety standards and regulations promulgated by the Federal Occupational Safety and Health Administration (29CFRI1910.401-1910.440 subpart T). All vessels registering for this fishery will be subject to safety inspections and an inspection conducted by the Washington State Department of Health. Vessels which fail to meet any of the safety standards will be provided the opportunity to remedy the situation within a reasonable amount of time. In-season safety inspection will be conducted at random; all vessels must successfully pass these safety inspections before proceeding in the fishery.
8. Diver Safety
Harvesters and divers shall comply with all of the applicable commercial diving safety standards and regulations promulgated by the Federal Occupational Safety and Health Administration (29CFRI1910.401-1910.440 subpart T). All participants in the fishery shall be subject to inspections and random drug testing during the harvest season to ensure compliance with all safety standards, regulations and provisions. Any participant in the fishery found in violation of any safety standard shall be subject to citation and removal from the fishery until remedial action is taken.
9. Sanitary Control of Shellfish
All emergency openings or closings will be posted at the Skokomish Natural Resources office All sub-tidal geoduck harvests are subject to emergency closure due to paralytic shellfish poison (PSP) or amnesic shellfish poison (ASP).
A label must be affixed to each container of commercially harvested geoduck prior to leaving the harvest site. Ready-to-use printed labels are available at the Skokomish Natural Resources office. The labels will be issued in person to registered tribal members only. Each label will meet the standards set forth in the National Shellfish Sanitation Program’s model ordinance, and shall include:
Divers and vessel owners planning to transport geoduck with a vehicle to an upland point of sale must have the vehicle inspected for compliance with the appropriate shellfish sanitation standards
All owners of vessels participating in the fishery must complete an approved Plan of Operation with the Washington State Department of Health for the harvest, handling and transport of geoduck product or provide the appropriate information to amend the Tribe’s Plan of Operation. Such information shall include a designated buyer of the product to be harvested, name and registration of the harvest vessel and a description of the harvest operation. Changes to the plan, such as selling to a new buyer not previously listed on the plan, must be approved prior to implementation of the change. . Any harvester or vessel owner who does not have their own Shellfish Operations License certified with the current harvest location will operate under the Tribe’s shellfish operation license, number WA-0577-HA. This license allows for the harvest and initial transportation of product to the point of sale. Sale of geoduck to a dealer not licensed with the Tribe and Washington State Department of Health is prohibited.
10. Take Home Harvest
All geoduck harvested for subsistence purposes must be recorded on the Treaty Indian Fish Tickets and reported to the harvest monitor for recording on the harvest monitor form. Selling subsistence geoduck is prohibited. All subsistence geoduck must be weighed by the buyer and recorded on the take home portion of the Treaty Indian Fish Ticket. Subsistence geoduck is removed from each individual’s personal quota.
11. Lawful Gear
Only a high pressure water jet with an inside diameter of 5/8 of an inch may be used for the harvest of geoduck.
12. Commercial Sale of Geoduck
Within two hours of the end of the harvest day, all harvested geoduck clams shall be brought to and weighed at the weigh-out site designated on the emergency regulation governing the conduct of the fishery. Should weather or some other factor prohibit weigh-out at the designated site, an alternative site will be designated by the monitor. All weigh-out shall be monitored by the tribal harvest monitor.
All geoduck sold must be reported on the Treaty Indian Fish Receiving Tickets. No geoduck shall be discarded after being harvested for any reason; all harvested geoduck must be for commercial or take-home purposes. All buyers must be certified by the Washington State Department of Health AND the Washington State Department of Fish and Wildlife AND licensed by the Skokomish Tribe. In addition to any other applicable penalties, any individual convicted of selling geoduck to a non-certified or unlicensed buyer shall lose his or her eligibility to participate in the fishery immediately and shall be prohibited from harvesting geoduck for the following two full seasons.
Geoduck will be taxed at $.85 per pound based on the information from the Treaty Indian Fish Receiving Ticket.
13. Structure of the Fishery Opening
The harvest shall be limited only to geoduck. Openings will be announced by emergency regulation. Fishing schedules shall be set by the Skokomish Department of Natural Resources, based on recommendations by the Fish Committee. All harvest areas will be clearly marked or otherwise known by the harvest monitor present at the harvest. A representative from each harvest vessel must notify the monitor and shellfish biologist by phone by 7:00 pm the night before a given harvest of their intent to participate in the next day’s harvest. The following information must be given:
The harvest monitor must be contacted prior to fishing on the day of the harvest; if no harvesters report to the harvest monitor within two hours of the opening time on the day of a fishery, the harvest shall be closed for that day.
No harvester or vessel may leave the harvest area without notifying the harvest monitor.
14. Harvest Monitor
All fishery openings will be monitored by the Department of Natural Resources staff. A harvest monitor will be present at the harvest site throughout the duration of each harvest period. A monitor will also be present at the weigh-out site to account for all harvested geoduck. Harvest without the presence of a monitor is prohibited. The harvest monitor will collect information about the amount harvested, area of harvest, harvest effort, and information related to tracking the sale of the product. The monitor may inspect vessels and divers to ensure compliance with safety standards and harvest regulations are being met. The harvest monitor may also prohibit vessels and harvesters from participating in the fishery should they be in violation of safety standards or harvest regulations. Furthermore, the monitor may close the fishery, adjust the harvest schedule or adjust management provisions to ensure compliance with safety standards, harvest regulations and allocation, should an allocation exist.
15. In-Season Reallocation of Geoduck
The Tribe’s geoduck allotment will be distributed to eligible divers in two rounds of allocation: one at the beginning of the geoduck season and one in January of the following year.
Between March 15 and March 31, unless otherwise prohibited, all eligible divers will be given an equal quota of geoduck pounds. In order to be eligible to receive a second allocation, divers must have harvested at least 50% of their first quota (and cannot be ineligible for diving for any reason) by December 31st. All remaining pounds of geoduck will be reallocated after January 2nd of the following year to all eligible divers. The remaining geoduck will be distributed equally to all eligible divers regardless of the amount of the original quota harvested by any one individual diver. Unless otherwise scheduled by the Tribe, all divers must harvest their second quota by the last day of February. On March 1, all remaining pounds will revert to the Tribe and be harvested by the Tribe, at its discretion.
If no allocation is set among the Tribes, the Skokomish Tribe will determine the structure of the geoduck fishery prior to the beginning of the season.
16. Overharvest Penalties
In addition to any other applicable penalties, an individual who exceeds his or her individual geoduck quota may be subject to the following, depending upon the amount of the overharvest:
(1) Overharvest of less than 25 pounds.
(a) The harvester may forfeit those geoducks to the monitor immediately so that the monitor may sell them on the Tribe’s card. The harvester will not be cited in this instance.
(b) If the harvester is eligible for the reallocation, the overage will be taken from the harvester’s reallocated pounds. The harvester will not be cited in this instance.
(c) If the overage is not forfeited or taken from the harvester’s reallocation, the harvester will be issued a written warning in lieu of a citation, provided that full restitution is made within 14 days of receipt of notification. Restitution shall be an amount equal to what the harvester received from the sale of the geoduck. If restitution is not made within 14 days, the diver will be ineligible to participate in the following year’s geoduck fishery and may receive a criminal citation.
(2) Overharvest by 26 pounds or more. The harvester shall be required to pay twice the amount of money received for those geoduck within 14 days of being notified of the overharvest. Failure to pay restitution will result in the diver’s ineligibility to participate in the following year’s geoduck fishery and possible criminal citation.
17. Designated Divers
In the event that a diver is unable to harvest his or her initial geoduck quota the diver may ask the Fish Committee, in person, to allow them to use a designated diver to harvest the remainder of their quota. Beginning with the 2010/2011 season, the following stipulations must be met for the individual to be considered for a designated diver:
(a) In the event the individual requests a designated diver for a medical reason the individual must present a note from a doctor verifying that the individual cannot, for medical reasons, harvest geoduck. The note must explicitly state that the individual is medically unfit to dive. Additionally, the note must estimate the time until this Tribal Member can re-enter the fishery.
(b) The individual requesting a designated diver has had fewer than 500 pounds of geoduck harvested by a designated diver during the current geoduck season. Individuals may only have up to 500 pounds of geoduck harvested by a designated diver during any given season.
(c) Henceforth, individuals requesting a designated diver cannot have previously received a designated diver during the current season.
(d) If no allocation is set among the Tribes, stipulations for a designated diver will be set prior to the fishing season.
(e) The above stipulations are not retro-active and take affect in the 2010/2011 fishery.
A designated diver will be assigned to a female who is pregnant, regardless of how many pounds remain in her quota, provided that she also meets the stipulation identified in item (a) only.
Tribal members who receive a designated diver for medical reasons must provide a doctor’s note that explicitly states the individual who received a designated diver is fit to dive prior to diving again.
Individuals requesting a designated diver must present to Fish Committee a list of other divers willing to act as their designated diver in order of preference. Fish Committee will then determine which individual will act as designated diver either from the preferred list or from another list of potential divers as provided by the Natural Resources Department. In the event the individual requesting a designated diver cannot provide a list of potential designated divers, Fish Committee will assign one.
If the Tribal Member requesting a designated diver is not satisfied with the Fish Committee’s response, then he or she may file a written request for a hearing with the Tribal Council. This request must be in writing and be submitted no later than ten (10) calendar days from receipt of the decision of the Fish Committee. The Tribal Member will be placed on the next available Tribal Council agenda. The decision of the Tribal Council is final and no further appeal is available.
Individuals who have a designated diver do not need to be present on the boat when the geoduck are harvested for them. However, they must be present to sign both the monitor form at the time of weigh-out and the Treaty Indian Fish Receiving Ticket at the time of sale.
18. Authority
These regulations are promulgated by the Skokomish Fish Committee and adopted by the Skokomish Tribal Council under authority of the Skokomish On-Reservation and Treaty Fishing Ordinance, section 7.02.025.
__________________________
Cynthia Gray
Harvest Manager
Skokomish Indian Tribe
[1] Immediate family members include only mother, father, wife, husband, brother, sister and children of the harvester.
[2] For purposes of this regulation, a "drug" is a controlled substance as defined by Skokomish Tribal Code 9.09, Drug-Related Offenses.
* This certification number is valid only for the harvest and transport of clams and oysters by Skokomish Tribal members participating in commercial fisheries governed by emergency regulation.