301 KAR 1:140. Special commercial fishing permit for Kentucky and Barkley lakes.

COMMERCE CABINET

Department of Fish and Wildlife Resources

(Amendment)

301 KAR 1:140. Special commercial fishing permit for Kentucky and Barkley lakes.

RELATES TO: KRS 150.450(2)

STATUTORY AUTHORITY: KRS 150.025(1)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 150.025(1) authorizes the department to regulate the size or type of devices and methods used to take wildlife, including rough fish and the places where they may be taken. This administrative regulation is necessary to specify [~~legal commercial fishing waters and~~] restrictions on the use of gill and trammel nets.

Section 1. Definitions. (1) "Bar mesh size" means the distance between two (2) knots on a line of a net.

(2) "Immediate family" means the person's spouse, mother, father, grandparent, son, or daughter.

(3) "Permit" means a special commercial fishing permit.

(4) "Roe fish" is defined in 301 KAR 1:155.

(5) "Rough fish" is defined by KRS 150.010(32).

(6)[~~(5)~~] "Whip set" means a gill net or a trammel net rigged so it is free-floating.

Section 2. Permit Requirements. (1) A person shall possess a valid Kentucky commercial fishing license to obtain or retain a permit throughout the special commercial fishing season.

(2) For the 2008-2009 special commercial fishing season, the department shall not issue more than twenty-five (25) permits. [~~The department shall issue a permit only to a person who is eligible as specified in this section and had previously purchased a permit for the 2003 through 2005 special commercial fishing season.~~

(3) For the 2007-2008 special commercial fishing season, the department shall not issue more than twenty-six (26) permits. Thereafter, the number of permits issued shall be reduced through attrition to a maximum of twenty-five (25).]

(a) A permit holder shall submit a completed permit application to the department, along with permit fees as stipulated in 301 KAR 3:022 on or before November 1 to retain their permit privilege. Mailed permit applications shall be postmarked on or before November 1. [~~A permit holder shall purchase a permit annually to retain the privilege to purchase a permit in following years;~~]

(b) The ability to purchase a permit shall only be transferred to immediate family members.[;]

(d) A lottery drawing shall be used to select new permittees once the number of permits has been reduced to less than twenty-five (25).

1. A person wishing to apply for a vacant permit shall submit a completed Application for a Special Commercial Fishing Permit to the department, [~~an application~~] along with permit fees, as stipulated in 301 KAR 3:022, on or before November 1 [~~to the department prior to October 1~~] of the fishing season to be included in the lottery drawing. Permit applications mailed to the department shall be postmarked on or before November 1.

2. No more than seven (7) of the maximum number of permits issued shall be nonresident permits.

Section 3. A person shall have in [~~who has in his or her~~] possession a valid permit and a commercial fishing license while using [~~may use~~] a gill net or a trammel net to take rough fish:

(1) From November 1 through March 31 at both Kentucky and Barkley lakes.

(2) In the portions of Kentucky and Barkley lakes open to commercial fishing as specified in 301 KAR 1:150.

Section 4. A person using a gill net or a trammel net in the waters specified in Section 3 of this administrative regulation shall:

(1) Before fishing, and after meeting requirements in Section 2 of this administrative regulation apply for a permit by submitting a completed Application for a Special Commercial Fishing Permit that shall be provided by the department.

(2) Have the permit in [~~his or her~~] possession while:

(a) Fishing with a gill net or a trammel net;

(b) Transporting a gill net or a trammel net; or

(3) Tag a gill net or a trammel net as specified in KRS 150.175(1)(d);

(4) Not use a gill net or a trammel net with a bar mesh size smaller than three and five-tenths (3.5) [~~one-half (3-1/2)~~] inches or larger than four and five-tenths (4.5) [~~one-half (4-1/2)~~] inches, except:

(a) A whip set may have a minimum bar mesh size of three (3) inches; and

(b) Beginning on November 15 and running through March 31 at both Kentucky and Barkley lakes, gill and trammel nets with a bar mesh size larger than [~~from~~] four and five-tenths (4.5), but less than or equal to [~~one-half (4 1/2) to~~] six (6) inches may be used in stationary sets only.[;]

(5) Not fish a stationary set net with the top of the net or float line shallower than three (3) feet below the surface;

(6) Tend each net, except whip sets, at least once every twenty-four (24) hours;

(7) Not leave whip sets unattended;

(8) Affix a decal supplied by the department to each side of the boat or motor used [~~he uses~~] for fishing under this permit so that the decal is clearly visible while [~~the boat is used for~~] fishing with a gill net or a trammel net;

(9) Not dispose of any commercially caught rough fish at public boat launch areas; and

(10) Not harvest paddlefish at both Kentucky and Barkley lakes during the special commercial fishing season that are less than thirty-eight (38) inches, as measured from the beginning of the eye to the fork of the tail fin. [~~Adhere to the following minimum eye to fork length size limit for paddlefish~~

~~(a) From November 1, 2007 to March 31, 2008 at Kentucky and Barkley lakes the minimum eye to fork length size limit for paddlefish shall be thirty-seven (37) inches; and~~

~~(b) Thereafter, the minimum eye to fork length size limit for paddlefish at both Kentucky and Barkley lakes during the special commercial fishing season shall be thirty-eight (38) inches.~~]

Section 5. The permit holder may be accompanied by one (1) unlicensed helper, who shall be:

(1) In the same boat with the permit holder while fishing with a gill net or a trammel net; or

(2) Accompanied by the permit holder while transporting or selling fish taken under the permit.

Section 6. The permit holder shall:

(1) Maintain an accurate record of daily fishing activity; and

(2) Submit a completed monthly report to the department by the tenth day of the following month on the Monthly Report of Commercial Fish Harvest in Kentucky form that is provided by the department.

Section 7. Paddlefish Harvest Requirements. (1) A person who possesses a valid permit shall be permitted to harvest paddlefish flesh or roe during the special commercial fishing season without the need to purchase a commercial roe fish harvester permit.

(2) A person who harvests paddlefish roe during the special commercial fishing season shall follow all commercial rose fish harvester permit reporting requirements as stipulated in 301 KAR 1:155, Section 4(7).

Section 8. Permit Revocation and Renewal.

(1) The department shall revoke or not renew the permit for a period of two (2) years, of a person who fails to complete and submit to the department a Monthly Report of Commercial Fish Harvest or a Daily Commercial Roe Harvest Report for each transaction involving a commercial roe dealer permittee or who has been convicted of a federal commercial fishing violation or the following state violations involving commercial fishing:

(a) Use of illegal commercial fishing gear;

(b) Placement of commercial fishing gear in a restricted area;

(d) Commercially fishing in waters not open to commercial fishing; or

(e) Nonreporting or falsifying of commercial harvest data.

(2) A person whose permit has been revoked or not renewed shall be eligible to enter the lottery drawing described in Section 2 of this administrative regulation following the revocation period only if a permit is available based on the twenty-five (25) permit restriction.

Section 9.[~~Section 8.~~] Incorporation by Reference. (1) The following material is incorporated by reference:

(a) Application for a Special Commercial Fishing Permit, 2007;

(b) Monthly Report of Commercial Fish Harvest in Kentucky, 2007; [~~and~~]

(d) List of commercial fisherman who remain eligible to purchase a Special Commercial Fishing Permit for the 2008-2009 season, 2008. [~~List of commercial fishermen who purchased a special commercial fishing permit during the 2003 through 2005 fishing seasons.~~]

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department of Fish and Wildlife Resources, #1 Sportsman's Lane, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

MARK S. CRAMER, Deputy Commissioner

For DR. JONATHAN GASSETT, Commissioner

MARACHETA SPARROW, Secretary

APPROVED BY AGENCY: December 7, 2007

FILED WITH LRC: February 14, 2008 at 10 a.m.

PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on March 21, 2008, at 1 p.m. at the Department of Fish and Wildlife Resources in the Commission Room of the Arnold L. Mitchell Building, #1 Sportsman’s Lane, Frankfort, Kentucky. Individuals interested in attending this hearing shall notify this agency in writing by five (5) business days prior to the hearing of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation by March 31, 2008. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to:

CONTACT PERSON: Rose Mack, Kentucky Department of Fish and Wildlife Resources, 1 Sportsman’s Lane, Frankfort, Kentucky 40601, phone (502) 564-7109, Ext. 441, fax (502) 564-9136.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

Contact Person: Rose Mack

(1) Provide a brief summary of:

(a) What this administrative regulation does: This administrative regulation establishes the procedures for taking rough fish during the special commercial fishing season from both Kentucky and Barkley lakes.

(b) The necessity of this administrative regulation: This administrative regulation is necessary to effectively manage the fishery resources and regulate the taking of rough fish from Kentucky and Barkley lakes by use of gill nets and trammel nets during the special commercial fishing season.

(c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 150.025 authorizes the Department to promulgate administrative regulations necessary to regulate commercial fishing in the Commonwealth of Kentucky.

(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will carry out the purposes of KRS 150.025 by defining the requirements for commercial fishing during the special commercial fishing season at Kentucky and Barkley lakes.

(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

(a) How the amendment will change this existing administrative regulation: This amendment clarifies that a person who possesses a special commercial fishing permit shall not be required to purchase a commercial roe fish harvester permit to harvest paddlefish from Kentucky and Barkley lakes during the special commercial fishing season. A person shall be required to follow all commercial roe fish harvester reporting requirements established in 301 KAR 1:155 if they harvest paddlefish from Kentucky and Barkley lakes. This amendment also clarifies when a person shall have their application submitted to the department to renew or purchase a special commercial fishing license.

(b) The necessity of the amendment to this administrative regulation: This amendment is necessary to clarify that a special commercial fishing permittee is not required to purchase a commercial roe fish harvester permit in order to harvest paddlefish from Kentucky and Barkley lakes during the special commercial fishing season. They will need to follow all commercial roe fish harvester reporting requirements established in 301 KAR 1:155. Also, this amendment clarifies the dates that special commercial fishing permit applications shall be submitted to the department.

(d) How the amendment will assist in the effective administration of the statutes: See (1)(d) above.

(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: There are currently 25 special commercial fishing permittees that may be affected by this amendment. Not all 25 permittees harvest paddlefish from Kentucky and Barkley lakes during the special commercial fishing season.

(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Special commercial fishing permittees shall have to follow the reporting requirements of a commercial roe fish harvester permittee if they harvest paddlefish roe from Kentucky and Barkley lakes during the special commercial fishing season. Also, special commercial fishing permittees will now have to have their application to renew their permit submitted to the department by November 1 to retain their permit privileges.

(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There will be no additional costs incurred to the special commercial fishing permittees as a result of complying with this administrative regulation.

(c) As a result of compliance, what benefits will accrue to the entities identified in question (3): By complying with this amendment, special commercial fishing permittees will be able to continue harvesting paddlefish from Kentucky and Barkley lakes during the special commercial fishing season without the need to purchase an additional permit.

(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

(a) Initially: There will be no cost to the agency as a result of this administrative regulation.

(b) On a continuing basis: There will be no cost on a continuing basis.

(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The source of funding is the State Game and Fish Fund.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: It will not be necessary to increase any other fees or to increase funding to implement this administrative regulation.

(8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: No new fees will be established.

(9) TIERING: Is tiering applied? Tiering was not applied because all special commercial fishing permittees were treated equally.

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

1. Does this administrative regulation relate to any program, service, or requirements of a state or local government (including cities, counties, fire departments, or school districts)? Yes

2. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Kentucky Department of Fish and Wildlife Resources Divisions of Fisheries and Law Enforcement will be impacted by this administrative regulation.

3. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 150.025 authorizes the department to promulgate administrative regulations necessary to regulate commercial fishing in the Commonwealth of Kentucky.

4. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? The cost of the permit is $900 for nonresidents and $600 for residents. There currently are a maximum of 7 nonresidents and 18 resident permit holders that generate a total of $17,100.

(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? Special commercial fishing permit holders are required to purchase permits on an annual basis. This regulation will generate approximately $17,100 in subsequent years.

(c) How much will it cost to administer this program for the first year? There will be no additional costs incurred for the first year.

(d) How much will it cost to administer this program for subsequent years? There will be no additional costs incurred in subsequent years.

Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

Revenues (+/-):

Expenditures (+/-):

Other Explanation: