301 KAR 1:155. Commercial fishing requirements.

301 KAR 1:155. Commercial fishing requirements.

RELATES TO: KRS 150.010, 150.120, 150.170, 150.175, 150.445, 150.450(2), (3), 150.990, 217.015(20), EO 2008-516

STATUTORY AUTHORITY: KRS 150.025(1), (c), (h), 150.175(3)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 150.175(3) authorizes the Department of Fish and Wildlife Resources to protect certain rough fishes as designated by administrative regulation. KRS 150.025(1)(c) and (h) authorizes the department to control, by administrative regulation, the buying, selling, and transporting of wildlife. EO 2008-516, effective June 16, 2008, reorganizes and renames the Commerce Cabinet as the new Tourism, Arts and Heritage Cabinet. This administrative regulation establishes paddlefish, shovelnose sturgeon, and bowfin as protected species and regulates the selling and buying of these roe-bearing species of rough fish.

Section 1. Definitions. (1) "Buyer's permit" means a Roe-bearing Fish Buyer's Permit.

(2) "Closed areas" means all waters not listed in 301 KAR 1:150 as being open to commercial fishing.

(3) "Commercial fisherman" means a person holding a valid resident or nonresident commercial fishing license.

(4) "Commercial fishing gear" means the equipment described in 301 KAR 1:146.

(5) "Harvester's permit" means a Roe-bearing Fish Harvester's Permit.

(6) "Overflow lake" means a permanent or temporary body of water that receives overflow flood waters from an adjacent stream.

(7) "Restricted areas" means within fifty (50) yards of the outlet or inlet of an overflow lake or within fifty (50) yards of the mouth of a stream, except the mouth of the Ohio River as established in this administrative regulation, or within 200 yards of dams as established in KRS 150.445.

(8) "Roe-bearing fish" means paddlefish, shovelnose sturgeon, and bowfin, regardless of the sex of the fish or the presence or absence or roe.

(9) "Roe-bearing Fish Buyer's Permit" means a permit issued by the Department of Fish and Wildlife Resources that entitles the permittee to buy roe-bearing species or roe in accordance with this administrative regulation.

(10) "Roe-bearing Fish Harvester's Permit" means a permit issued by the Department of Fish and Wildlife Resources to a licensed commercial fisherman that entitles the permittee to harvest and sell roe-bearing species in accordance with this administrative regulation.

(11) "Sport fish" means those species so designated by 301 KAR 1:060.

(12) "Unlicensed helper" means a person without a commercial fishing license who is assisting a commercial fisherman.

(13) "Unprocessed roe" means roe that has been removed from a roe-bearing fish by a food-processing plant, as defined by KRS 217.015(20), prior to its sale at a roe-bearing fish buyer's facility.

Section 2. Unlicensed Helpers. (1) A commercial fisherman shall not utilize more than two (2) unlicensed helpers while actively fishing.

(2) A commercial fisherman shall ensure that an unlicensed helper complies with all boating safety requirements established in KRS Chapter 235.

(3) An unlicensed helper shall be accompanied by a licensed commercial fisherman while using commercial fishing gear:

Section 3. Tagging and Using Commercial Gear. A commercial fisherman shall:

(1) Tag commercial fishing gear so that a conservation officer is able to find and read the commercial gear tag without undue difficulty;

(2) Not use commercial fishing gear:

(a) Within fifty (50) yards of the outlet or inlet of an overflow lake; or

(b) Within fifty (50) yards of the mouth of a stream except the mouth of the Ohio River; and

(3) Not use commercial nets from April 1 through October 31:

(a) In bays and inlets of Kentucky or Barkley Lakes; or

(b) Within a distance of 200 yards from the mouth of bays or inlets in Kentucky or Barkley Lakes.

Section 4. Commercial Roe-bearing Fish Harvester's Permit. (1) For the 2008 commercial fishing season:

(a) The department shall sell roe-bearing fish harvester's permits between the dates of October 6, 2008 and November 5, 2008 only to:

1. A resident of Kentucky who possesses a valid 2008 commercial fishing license; or

2. A person who possesses a valid nonresident 2008 commercial fishing license and previously:

a. Reported harvesting roe-bearing fish from March 1, 2006 to September 7, 2007; or

b. Purchased a shovelnose sturgeon permit for the 2006 - 2008 seasons;

(b) Initial permit applications.

1. An eligible licensed commercial fisherman shall submit to the department by November 5, 2008, a completed Application for a Roe-bearing Fish Harvester 's Permit along with permit fees as established in 301 KAR 3:022.

2. Mailed applications shall be postmarked not later than November 5, 2008; and

(c) The number of harvester's permits sold after the 2008 season shall not exceed 120 percent of the total number of resident and nonresident harvester's permits sold in 2008.

(2) Beginning with the 2009 commercial fishing season:

(a) The number of resident permits available shall be 120 percent of the resident permits sold in 2008.

(b) The number of nonresident permits available shall be 120 percent of the nonresident permits sold in 2008.

1. Possess a valid commercial fishing license and submit to the department by September 15, a completed Application for a Roe-bearing Fish Harvester's Permit along with permit fees as established in 301 KAR 3:022; and

2. Mailed applications postmarked by September 15.

(d) A harvester permittee shall be eligible to transfer permit privileges to an immediate family member, or to an unlicensed helper who has been employed by the permittee for a period of at least one (1) year in that capacity and who complies with the requirements of this administrative regulation.

1. The harvester permittee shall send to the department a notarized letter documenting the name and relationship of the transferee and documents showing employment for a period of one (1) year for an unlicensed helper.

2. Transferability shall be voided if a commercial fishing license or harvester's permit is revoked or suspended as established in Section 11 of this administrative regulation; and

(e) If the number of either resident or nonresident harvester's applications is lower than the number issued in 2008, the unfilled permits shall be available using methods described in subsection (3) of this section.

(3) Lottery drawings for resident and nonresident harvester's permits.

(a) Harvester's permits shall not be sold to a resident of a state that will not sell a nonresident harvester's permit, or its equivalent, to a Kentucky resident.

(b) Unfilled harvester's permits.

1. A person wishing to apply for an unfilled resident or nonresident harvester's permit in the lottery drawings shall submit a completed Application for a Roe-bearing Fish Harvester's Permit to the department, by September 15, along with permit fees as established in 301 KAR 3:022.

2. Mailed applications shall be postmarked by September 15.

(c) A person chosen in the lottery drawing for an unfilled harvester's permit shall obtain a valid commercial fishing license prior to obtaining the harvester's permit.

(d) If a person is not chosen in the lottery drawing, permit fees shall be returned.

(e) If the department receives fewer resident or nonresident harvester's permit applications than the number of available permits, then those unused permits shall carry over to the next year.

(4) Roe-bearing fish harvester's permit requirements.

(a)A harvester's permit shall be required for a licensed commercial fisherman to harvest, transport, or sell roe fish or unprocessed roe.

(b) A harvester's permit shall not be required for a special commercial fishing permittee to harvest and sell roe-bearing fish flesh or unprocessed roe from Kentucky and Barkley lakes during the special commercial fishing season, as established in 301 KAR 1:140.

(c) A harvester's permit shall not be issued unless all monthly reports, as established in this Section and Section 10 of this administrative regulation, have been completed and submitted to the department.

(d) A harvester permittee shall:

1. Have the harvester's permit in possession while:

a. Fishing for roe-bearing fish; and

b. Transporting or selling roe-bearing fish or unprocessed roe;

2. Only sell, ship, barter, or provide harvested roe from roe-bearing fish to a Kentucky permitted buyer as established in Section 5 of this administrative regulation;

3. Possess a valid bill of lading if transporting unprocessed roe to a Kentucky permitted buyer;

4. Complete a Daily Roe-bearing Fish Harvester's Transaction Report as follows:

a. Complete and submit a Daily Roe-bearing Fish Harvester's Transaction Report for each day that roe-bearing fish are harvested or are sold to a Kentucky permitted buyer; and

b. All Daily Roe-bearing Fish Harvester's Transaction Reports that are completed within a calendar month shall be submitted to the department by the tenth day of the following month; and

5. Complete and submit to the department a monthly report as established in Section 10 of this administrative regulation.

Section 5. Buyer's Permit Requirements. (1) Except as established in Section 4(4) of this administrative regulation, a buyer's permit shall be required to buy, sell, barter, receive, or ship unprocessed roe from roe-bearing fish harvested in Kentucky.

(2) A person shall apply for a buyer's permit by submitting a completed Application for Commercial Roe-bearing Fish Buyer's Permit along with permit fees, as established in 301 KAR 3:022, to the department.

(3) A buyer permittee shall:

(a) Not knowingly purchase illegally taken fish or unprocessed roe from any state;

(b) Have in possession a valid buyer's permit while purchasing, receiving, or transporting unprocessed roe;

(c) Maintain for a period of three (3) years an accurate record of all unprocessed roe purchased from roe fish harvested in Kentucky;

(d) Maintain for a period of three (3) years an accurate record of all unprocessed roe purchased from roe fish harvested in another state including:

1. Name, address, and telephone number of the seller;

2. License number of the seller; and

3. Number of pounds of unprocessed roe purchased;

(e) Submit a completed Monthly Commercial Roe-bearing Fish Buyer's Report to the department by the tenth day of the following month;

(f) Sign the Daily Roe-bearing Fish Harvester's Transaction Report for each transaction with a harvester permittee prior to purchasing or receiving unprocessed roe from the harvester permittee;

(g) Retain a copy of the Daily Roe-bearing Fish Harvester's Transaction Report for each transaction with a harvester permittee for a period of three (3) years; and

(h) Allow a conservation officer access to all records and reports, as established in this section, upon request, during normal business hours.

Section 6. Commercial Fishing Season and Size Limits. (1) The commercial fishing season shall be open year round in the waters listed in 301 KAR 1:150 except for:

(a) Kentucky and Barkley lakes as described in 301 KAR 1:140;

(b) The shovelnose sturgeon (Scaphirhynchus platorynchus) season, which shall extend from October 15 through May 15; and

1. November 1 through April 30 for all legal commercial fishing gear as established by 301 KAR 1:146 generally in all waters open to commercial fishing, except Barkley and Kentucky Lakes, which seasons are established in 301 KAR 1:140; and

2. May 1 through May 31 for commercial trotlines only in all waters open to commercial fishing except the Ohio and Mississippi Rivers.

(2) There shall not be size limits on any commercially-harvested rough fish except that a commercial fisherman shall only harvest:

(a) Shovelnose sturgeon between twenty-four (24) and thirty-two (32) inches, as measured from the tip of snout to the fork of the tail fin; and

(b) Paddlefish that are thirty-two (32) inches or greater, as measured from the beginning of the eye to the fork of the tail fin, except for Kentucky and Barkley lakes as specified in 301 KAR 1:140.

(3) A harvester or buyer permittee shall not possess:

(a) Unprocessed Paddlefish roe after June 5; or

(b) Unprocessed Shovelnose sturgeon roe after May 20.

Section 7. Fish Species Ineligible for Commercial Harvest. (1) A commercial fisherman shall not take:

(a) Sport fish listed in 301 KAR 1:060;

(b) Pallid sturgeon (Scaphirhynchus albus), a federally-endangered species; or

(2) If a commercial fisherman catches a fish listed in subsection (1) of this section, the fish shall be immediately returned, without undue injury, to the waters where it was taken.

(3) A licensed commercial fisherman shall only sell roe-bearing fish or unprocessed roe from roe-bearing fish harvested by commercial fishing methods established in and permitted by 301 KAR 1:146.

Section 8. Tending Gear and Removing Fish. A commercial fisherman shall:

(1) Tend and remove the fish from:

(a) Baited hoop nets or slat traps at least every seventy-two (72) hours; and

(b) Other commercial fishing gear at least every twenty-four (24) hours;

(2) Not possess eggs of any species of fish outside of the fish's body cavity while on the water or adjacent bank; and

(3) Remove commercial fishing gear from the water when finished fishing.

Section 9. Roe Fish Egg Checking Methodology. A commercial fisherman may use a ten (10) gauge needle to examine roe fish for the presence of eggs.

Section 10. Reporting. A commercial fisherman shall report to the department his or her monthly catch for all months licensed, including months the licensee did not fish, by the tenth day of the following month by completing a Monthly Report of Commercial Fish Harvest in Kentucky form provided by the department.

Section 11. License and Permit Suspension, Nonrenewal, and Revocation.

(1) The department shall suspend the commercial fishing license, harvester's permit, or buyer's permit, of a person who fails to complete and submit to the department any reports required by this administrative regulation by the following methods:

(a) The first time during the season a report is not received or, if mailed, not postmarked by the tenth of the following month, the licensee or permittee shall receive by mail a courtesy reminder letter.

(b) The second time during the season a report is not received or, if mailed, not postmarked by the tenth of the following month, the licensee or permittee shall receive a warning letter.

(c) The third and subsequent times during the season a report is not received or, if mailed, not postmarked by the tenth of the following month, the license or permit shall be suspended until all reports have been received.

(2) The department shall not renew the commercial fishing license or harvester's permit of a person who fails to complete and submit to the department all reports required by this administrative regulation.

(3) The department shall revoke the commercial fishing license or harvester's permit, for a period of two (2) years, of a person 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) Knowingly placing commercial fishing gear in a restricted area;

(d) Commercially fishing in waters not open to commercial fishing as established by 301 KAR 1:150; or

(e) Knowingly falsifying commercial harvest data.

(4) The department shall revoke the buyer's permit, for a period of two (2) years, of a person who:

(a) Has been convicted of a federal commercial fishing violation; or

(b) Has falsified data on the Monthly Commercial Roe-bearing Fish Buyer's Report.

(5) An individual whose permit or license has been denied, suspended, not renewed, or revoked may request an administrative hearing pursuant to KRS Chapter 13B.

Section 12. Boundaries. The department shall make available on its Web site at www.kdfwr.state.ky.us Global Positioning System (GPS) coordinates detailing the boundary with Ohio, on the Ohio River, for download to personal devices.

Section 13. Incorporation by Reference. (1) The following material is incorporated by reference:

(a) "Application for Commercial Roe-bearing Fish Harvester's Permit", 2008;

(b) "Application for Commercial Roe-bearing Fish Buyer's Permit", 2008;

(d) "Monthly Commercial Roe-Bearing Fish Buyer's Report", 2008;

(e) "Monthly Report of Commercial Fish Harvest in Kentucky"; and

(f) List of GPS coordinates for Ohio River Boundary with Ohio, 2008.

(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. (KFWR-F-CF3-2; 1 Ky.R. 243; eff. 1-8-75; Am. 5 Ky.R. 1078; eff. 8-1-79; 21 Ky.R. 490; eff. 9-28-94; 25 Ky.R. 410; 834; eff. 10-16-98; 29 Ky.R. 1314; 1765; eff. 1-16-2003; 32 Ky.R. 942; eff. 2-3-06; 34 Ky.R. 367; 850; 1395; eff. 12-12-07; 34 Ky.R. 2217; Am. 2552; 35 Ky.R. 550; eff. 9-12-08.)