Chapter 12.12 SHELLFISH CODE

This Code shall be known as the “Revised Puyallup Tribal Shellfish Code.” It is intended to be civil rather than criminal in nature and is enacted for the welfare and security of the Puyallup Tribe of Indians, its members and its shellfish resource. Major purposes of this Code include:

(a) To ensure that all Puyallup Indians may exercise equal opportunity and rights to take shellfish as intended and protected under the Medicine Creek Treaty, 10 Stat. 1132, as contracted with the people and government of the United States.

(b) To manage the harvests of various shellfish species, in such manner as to provide for best economic utilization of harvestable resources, to meet essential conservation requirements for perpetuating the respective species at optimum levels, and to demonstrate respect for the rights and privileges of other Tribes and people having interest in these resources.

(c) To establish systems of resource management and training for meeting the program goals of the Puyallup Tribe, for monitoring harvest impacts and conservation needs, for securing information, technical assistance and expertise from other available sources for use in the conduct of these activities and for evaluating and otherwise carrying out Tribal management responsibilities.

(d) To enforce the provisions of this Code and other Tribal laws and regulations governing Tribal harvesting activities. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.110]

12.12.020 Jurisdiction.

(a) The Puyallup Tribe shall exercise exclusive jurisdiction within the limits of the exterior boundaries of the Puyallup Indian Reservation and where the exclusive right of taking fish remains with the Puyallup Tribe.

(b) This Code and the regulations adopted in accordance with its provisions shall be applicable in all usual and accustomed fishing areas reserved and secured to Puyallup Indians under the Medicine Creek Treaty. Where such areas are jointly held or used by the Puyallup Tribe and other Indian Tribes, concurrent jurisdiction shall be recognized. The Puyallup Tribe shall exercise legal jurisdiction over all Indian persons in the taking of fish within the foregoing described areas. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.120]

12.12.030 Definitions.

Words of this Code shall have the meaning given them in this Code unless the context clearly indicates another meaning. If the meaning of a word is not clear, it shall be construed in harmony with the purposes of this Code.

(a) “Commission” or “Shellfish Commission” means the Puyallup Tribe of Indians Shellfish Commission.

(b) “Council” or “Tribal Council” means the Puyallup Tribe of Indians Tribal Council.

(d) “Department” means the Puyallup Tribal Shellfish Department.

(e) “Director” means the Puyallup Tribal Shellfish Director.

(f) “Elder” means a Puyallup Tribal member who has reached the age of 45 years.

(g) “Family” includes the spouse, children, parents, brothers, sisters, grandparents, grandchildren, uncles, aunts, first cousins, parents-in-law, step and foster children, and others raised or residing in the home and/or considered by the community to be part of the family.

(h) “Member” means a duly enrolled member of the Puyallup Tribe of Indians.

(i) “NSSP” means the National Shellfish Sanitation Program, which designates the Tribal, state, and United States cooperative program for the certification of interstate shellfish shippers.

(j) “Prosecutor” or “Tribal Prosecutor” means the Prosecutor for the Puyallup Tribe of Indians.

(k) “Sale” means the selling, bartering, or otherwise disposing of shellfish other than for personal use.

(l) “Shellfish” includes mollusks (such as octopus, squid, clams, cockles, mussels, oysters, scallops, snails, limpets, chitons, abalone and dentalia), crustaceans (crabs, shrimp and barnacles), echinoderms (sea urchins and sea cucumbers) and enidaria (sea anemones).

(m) “Shellfish regulated by NSSP” include all edible species of oysters, clams, mussels, and scallops. Some of the common bivalves included in this definition are: cockle, geoduck, freshwater clam, soft shell clam, gaper or horse clam, razor clam, bent-nose clam, Pismo clam, butter clam, Pacific littleneck clam, Manila clam, Pacific (Japanese) oyster, Olympia or Yaquina oyster, blue or bay mussel, green lipped mussel, sea scallop, bay scallop, calico scallop, weathervane scallop, spiny scallop, pink scallop, purple hinge rock scallop.

(n) “Shellfish pot” shall be defined as a movable trap with one or more entrance tunnels used to entrap shellfish in a live condition.

(o) “Shellstock shipper” is a person who grows, harvests, buys, or repacks and sells shellstock. They are not authorized to shuck shellfish nor to repack shucked shellfish. A shellstock shipper may also ship shucked shellfish.

(p) “Spouse” means a person’s husband or wife through a legally recognized marriage.

(q) “Tribe” means the Puyallup Tribe of Indians unless the context clearly indicates otherwise. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.130]

12.12.040 Authority of the Tribal Council.

The Puyallup Tribal Council shall have the authority to amend this Code in whole or in part. No action taken by the Shellfish Commission will be effective unless it has been adopted or approved by the Tribal Council, except that emergency regulations authorized by the Shellfish Commission and approved by the Director shall have immediate effect and shall remain in force until their expiration, or until the Tribal Council shall disapprove or modify such emergency regulations. Notwithstanding any other provisions of this Code, the Tribal Council has the authority to approve, revise, modify, adopt or rescind a harvest management regulation or plan after considering the recommendation of the Shellfish Director, without action, participation, involvement, recommendation or approval of the Shellfish Commission. [Res. 200921A (09/20/21); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.140]

Subchapter 2. Shellfish Commission

12.12.050 Appointment of Shellfish Commission.

The Puyallup Tribal Shellfish Commission shall be composed of at least five, but no more than seven, Tribal members appointed by the Tribal Council for three-year terms, at the discretion of the Council. A member may serve more than one term. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.210]

12.12.060 Eligibility.

A candidate for membership on the Shellfish Commission must be an enrolled member of the Puyallup Tribe, and have no Tribal Court convictions of any shellfish or other fishing violation in the last two years. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.220]

12.12.070 Vacancies and removal from office.

If a Shellfish Commissioner shall die, resign, or be found guilty of a fisheries violation in Tribal Court, or be removed for failure to carry out the duties set forth in PTC 12.12.080, the Tribal Council shall appoint a Commissioner to serve out the term of the departing Commissioner. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.230]

12.12.080 Duties of the Commission.

The Commission shall be responsible for the implementation of this Code, in conjunction with the Puyallup Tribal Shellfish Department. The Commission shall also propose regulations and amendments of this Code to the Tribal Council for its approval. The Commission’s duties include, but are not limited to, the following:

(a) To develop shellfish regulations, in conjunction with the Tribal shellfish biologist(s) and Shellfish Director.

(b) To analyze data concerning the management of the shellfish resource including, but not limited to, conservation, sanitation, and enhancement needs.

(c) To act as an advisory body to the Council and Shellfish Director on all issues concerning the regulation, conservation, and enhancement of the Tribal shellfish resource, including but not limited to state and intertribal management issues.

(d) To approve any Tribal shellfish training operation.

(e) To receive and consider information, grievances, and recommendations from Tribal harvesters and other Tribal members, other Indian tribes, federal and state agencies, or other interested parties, relating to the conduct of Tribal harvests, conservation needs, or related management decisions.

(f) To coordinate with the Tribal enforcement personnel activities which will minimize violations of Tribal regulations and assist conformance; aid in the monitoring of Tribal harvests and the gathering of any required report information; enable cooperative enforcement activities or patrols between Tribal officers and other agencies to minimize non-Tribal interference with authorized Tribal fishing activity; or otherwise aid in the monitoring or management purposes and objectives of the Puyallup Tribe.

(g) Provide for a licensing or identification system for all boats and gear used by Tribal harvesters and elder’s subsistence assistants in Tribally authorized shellfish harvest activities.

(h) Provide development of Tribal programs, or Tribal participation in other programs, which will contribute to Tribal shellfish resources conservation, rehabilitation, development and enhancement, or which will contribute to the development of new employment opportunities for Tribal members in shellfish management activities and in shellfish-related industries. [Res. 280722 (07/28/22); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.240]

12.12.090 Conducting business.

For the purpose of conducting business the Shellfish Commission shall meet at least once per month and must have a quorum of the Commission, which shall be three members. The day, time and location of the Shellfish Commission meeting shall be prominently posted at the Shellfish Department Office in the Tribal Administration Building. Any decisions or approval of regulations and ordinances to be proposed to the Tribal Council shall be by simple majority vote of the Commission members present. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.250]

Subchapter 3. Shellfish Director

12.12.100 Appointment.

The Shellfish Director shall be appointed by the Tribal Council. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.310]

12.12.110 Duties of the Shellfish Director.

The Shellfish Director’s duties shall include, but not be limited to, the following:

(a) Issuing emergency regulations as necessary.

(b) Preparing regulations in conjunction with the shellfish biologist(s) and Shellfish Commission, subject to PTC 12.12.040.

(c) Proposing in conjunction with the Shellfish Commission any amendments or additions to this chapter for adoption by the Tribal Council.

(d) Arranging for a reasonable and convenient system for all Tribal shellfish harvesters to report their harvests, which shall include the harvest location, gear, and amounts.

(e) Coordinating with appropriate federal, state and other Tribal governments, in the receipt, collection, or transmittal of information and data relating to harvesting estimates, conservation needs, needs for any emergency regulations, or other information related to management needs or decisions, on a reasonable and periodic basis.

(f) Receiving and considering, in consultation with the Shellfish Commission, recommendations from Tribal harvesters and other Tribal members, other Indian tribes, federal and state agencies, or other interested parties, relating to the conduct of Tribal harvest, conservation needs, or related management decisions.

(g) Coordinating, in consultation with the Shellfish Commission, any Tribal enforcement personnel activities compliance; aid in the monitoring of Tribal harvests and the gathering of any required report information; and enable cooperative enforcement activities or patrols between Tribal officers and other agencies to minimize non-Tribal interference with authorized Tribal shellfish harvesting activities. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.320]

Subchapter 4. Regulations

12.12.120 Harvesting regulations.

All shellfish harvesting areas shall be closed to all harvest of shellfish, unless opened by Tribal regulation. Regulations shall be posted on the information board located on the main floor of the Tribal Administration Building, and shall be available on the Shellfish Hotline. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.410]

12.12.130 Emergency regulations.

(a) The Shellfish Director shall have the authority to issue emergency regulations when deemed necessary to ensure proper management of the shellfish resource, including, but not limited to, closing a Tribal shellfish harvest when necessary for conservation or health purposes. The Shellfish Director shall consider the recommendations of the fisheries policy representative, shellfish biologist and Shellfish Commission, as well as data from the state, when issuing emergency regulations. Emergency regulations shall be posted on the information board located on the main floor of the Tribal Administration Building, and shall be available on the Shellfish Hotline.

(b) Each emergency regulation shall identify the effective date, time, species, and specific areas affected by the emergency closure, as well as the type of harvest, i.e., commercial, subsistence, and/or ceremonial.

(c) No penalty shall be imposed for violations of an emergency regulation unless 24 hours have passed since its issuance, unless personal notice has been given to the affected harvester. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.420]

Subchapter 5. Eligibility and Limitations

12.12.140 Persons eligible to harvest.

(a) Only duly enrolled members of the Puyallup Tribe, aged 16 or older, shall be authorized to engage in any shellfish activity which is or may be allowed under provisions of this Code or Tribal regulations.

(b) It shall not be a violation of this Code for Tribal members under the age of 16 years to be present during the exercise of any Treaty shellfish activity, if accompanied by an authorized Treaty fisher, and the child is present only after the hours of 3:00 p.m., or on a holiday or weekend.

(c) Any harvester who has not paid his or her shellfish tax or fisheries-related Court fines shall be denied a Tribal fisheries identification card until such time as such taxes owing and/or fines owing have been paid in full, or the harvester is certified by the Tribal Court to be in compliance with Court-imposed fisheries-related penalties. [Res. 280722 (07/28/22); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.510]

12.12.150 Restriction of fishing activity.

(a) Any person issued an identification card, permit or license shall not engage in the commercial fisheries of any other Indian tribe, or any state, during the same season, April 1st through March 31st, as when Puyallup Tribal authorization is being used or utilized in any Puyallup Tribal fishery.

(b) This section shall not prohibit any person from aiding, accompanying, or assisting fishers of other Tribes in the operation of fishing gear or equipment if such activities are authorized by another Indian Tribe but shall only prohibit the person from simultaneously working as a principal fisher under authorization from some other Tribe. Violations of this subsection may result in revocation of the person’s Tribal identification card, permit or license.

(c) Exceptions to the requirements of this Code may be granted by the Puyallup Tribal Council when good cause and a demonstrated need are shown by written application. The Tribal Council shall issue a written statement either granting or denying the exception. Tribal policy generally shall be to deny exemptions, but extraordinary and exceptional circumstances affecting the welfare of Tribal members should be considered. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.520]

12.12.160 Shellfish conviction in other jurisdiction.

Notwithstanding PTC 12.12.140, no person shall be eligible for shellfish privileges who has been convicted of a shellfish-related violation under the law of any federally recognized Indian tribe or any state or the United States unless and until the entire sentence arising from the conviction has been completed, including all periods of probation, supervised release and conditional release.

(a) The Tribal Court has no authority under this section to review whether an individual violated any law on which such conviction is based.

(b) This section shall not apply to a conviction based solely on an act or acts committed prior to the effective date of this section.

(c) This section shall not apply to a conviction relating to the bona fide and good faith exercise or defense of Tribal Treaty rights established by the United States District Court for the Western District of Washington in United States v. Washington, Cause No. CV 70-9213. [Res. 180106A § I (01/18/06); prior code § 12.05.530]

Subchapter 6. Fishing Assistants

12.12.170 Assistant-aided harvesting.

Repealed by Res. 280722. [Res. 161203 (12/16/03); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.610]

12.12.180 Elder’s subsistence assistant.

An elder in need of assistance, due to ill-health, disability, and the like, shall be allowed to secure the help of an assistant to harvest shellfish for subsistence purposes only. To be eligible as an elder’s subsistence assistant, the assistant must be a Tribal member over the age of 16 years. The elder in need of assistance shall apply to the Director or designated official for a permit. An elder’s assistant must comply with all provisions of this Code and all future amendments and regulations. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.620]

12.12.190 Assistant card.

Repealed by Res. 280722. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.630]

12.12.200 Consent by nonmember.

Repealed by Res. 280722. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.640]

12.12.210 Jurisdiction.

Repealed by Res. 280722. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.650]

12.12.220 Consent by the Puyallup spouse or relative.

Repealed by Res. 280722. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.660]

12.12.230 Interim suspension of assistant card.

Repealed by Res. 280722. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.670]

12.12.240 Civil proceeding.

Repealed by Res. 280722. [Res. 280208 § I (02/28/08); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.680]

12.12.250 Providing data.

Anyone authorized to harvest pursuant to this Code shall be responsible for providing the Shellfish Department all data as required by Subchapter 13. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.690]

Subchapter 7. Tribal Identification, Permits, and Licenses

12.12.260 Permits.

(a) It shall be unlawful for any Tribal member or elder’s subsistence assistant to harvest any shellfish for commercial, subsistence, or ceremonial purposes without obtaining a permit issued by the Director, or designated official.

(b) The Tribal fishing card shall be the permit for the subsistence harvester.

(d) The Director or other designated official shall have the discretion to issue or deny permits if the Director finds such action is in the best interests of the Tribal shellfish resource.

(e) Each permit shall be for a specified period of time, and may restrict the holder to harvest shellfish from only certain areas, specific species, and specific gear used. Any such restrictions imposed shall be made on the basis of the best interests of the shellfish resource.

(f) Each permit holder must have on their person a copy of the permit while harvesting shellfish.

(g) Permits shall be of the following types:

(1) A commercial permit shall be issued when the shellfish harvested will be sold, bartered, or disposed of other than for subsistence or ceremonial use.

(2) A subsistence permit shall be automatically allowed by virtue of the Tribal member being a holder of a Tribal fishing card so long as the shellfish harvested will be used by the Tribal member, or a member of the Tribal member’s family.

(3) A ceremonial permit may be issued when the shellfish will be used for the purpose of fulfilling requirements and needs for traditional Tribal ceremonies. Any member who is limited in or denied the privilege of taking ceremonial shellfish, for other than conservation or sanitation reasons, shall have the right of immediate appeal to the Tribal Council, whose decision shall be final. [Res. 280722 (07/28/22); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.710]

12.12.270 Fines and judgments to be paid.

No person shall be issued a Tribal commercial shellfish permit unless and until he or she has paid all taxes and/or fines incurred during prior seasons, and has either satisfied all Tribal Court judgments resulting from shellfish or fishing violations, or has certification from Tribal Court of compliance with Court-imposed penalties. The Tribal Court shall suspend any permit issued or held in violation of this section until all such taxes, fines and judgments have been paid in full. [Res. 180106A § II (01/18/06); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.720]

12.12.280 Shellstock shipper’s license.

Any person engaging in the commercial harvesting of clams, mussels, oysters, and scallops shall obtain a shellstock shipper’s license and certification through the Washington State Department of Health, provided the Tribe does not have a shellstock shipper’s license and certification issued from the Washington State Department of Health. After the Tribe receives its shellstock shipper’s license and certification, any person engaged in the commercial harvesting of clams, mussels, oysters, or scallops may become an approved shellstock shipper under the Tribe’s umbrella certification by obtaining a Tribal commercial harvest license. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.730]

12.12.290 Quota limits.

The Director may determine for each shellfish management area a total maximum number of pounds or number of shellfish to be harvested. In determining quota limits for specific harvesting areas, the Director may allocate a set aside for projected ceremonial harvesting. Once this quota is met, the management area shall be closed to further commercial and subsistence harvesting. Ceremonial harvesting may be allowed in a closed management area that is closed due to quota limits and is not a threat to conservation or health, provided such harvesting has received permit approval as provided in PTC 12.12.260. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.740]

12.12.300 Individual limits.

(a) In any fishery where individual harvesting quotas are set, quotas shall be determined on a quarterly basis, and there shall be no carryover of unharvested quotas from one quarter to the next.

(b) No one shall harvest the individual quota of another unless authorized by a written order of the Tribal Court entered pursuant to this subsection. A Tribal member who (1) has a current, valid quarterly geoduck permit, (2) has a quota for the current quarter with pounds remaining for harvest, (3) is not in violation of the drug test provisions or other requirements of this Code, and (4) is in all other respects eligible to harvest under this Code, but who is prevented from diving for a limited period of time by a temporary medical condition, in accordance with all of the criteria set forth in this subsection, may request that the Tribal Court grant an order authorizing a medical dive assistant. The order must be requested in a writing filed in Court, and a copy shall be served on the Tribal Prosecutor. The Tribal Prosecutor has 10 court days to submit a written response to the individual requesting the order and the Court to support the request, oppose the request, or support the request with conditions, consistent with the criteria and procedures set forth in this subsection. If the parties are unable to agree, the Tribal Court shall schedule a trial to receive testimony and documentary evidence relevant to the request, including but not limited to a witness or witnesses from Law Enforcement, the Shellfish Director, Shellfish Department staff, or other witnesses called or exhibits offered by either of the parties, regarding the eligibility status of the person requesting dive assistance, or relevant to any other disputed issue arising under the criteria or requirements contained in this subsection. The person requesting the medical dive assistant authorization shall have the burden of proof on all issues. The Tribal Court shall enter an order approving a medical assistant diver only (1) where a temporary medical condition prevents a dive harvester from diving for a limited period of time; and (2) the temporary medical condition is documented by a declaration or affidavit from the diver’s physician; and (3) the diver has granted a full and unlimited release of medical information authorizing the Tribal Prosecutor to obtain copies of the medical file and to interview, depose and subpoena the physician for the purposes of determining and establishing the suitability of the application under the criteria of this subsection and supporting or opposing the same at trial in Tribal Court; and (4) the diver has not received a previous dive medical permission for the current year; and (5) the person who is to perform the medical assistant dive must be an eligible diver. Should that person become ineligible at any time during the medical assistant period, a new request must be submitted, and no additional time will be added due to the first assistant’s loss of eligibility. The dive medical order shall not authorize a medical assistant dive for a period exceeding 90 days, or beyond the period during which the person being assisted is eligible to harvest under all the provisions of this Code; provided, however, that in the case of pregnancy, the Court’s order may allow an assistant for up to one full year. Any party aggrieved by the decision of the Tribal Court may appeal as provided for civil cases.

(c) Each owner and any designated boat captain shall be responsible for ensuring that no dive harvester or his or her boat is harvesting the individual quota of another dive harvester without permission of the Council. Any boat captain who permits a dive harvester on his or her boat to violate this section shall be subject to the same penalties as the dive harvester.

(d) The Shellfish Director shall have the authority to determine individual harvesting quotas on a quarterly basis, and to reduce the individual harvesting quota of any harvester whose fish tickets or monitor sheets show overharvest of their individual quota in the preceding quarter or quarters. The Director shall reduce the individual harvesting quota by an amount equal to the amount overharvested by that individual in the preceding quarter or quarters.

(e) Any dive harvester who has not harvested at least half of their individual quota by the end of any quarter shall not be eligible to receive an individual harvesting quota for the following quarter.

(f) The Director shall be authorized to restore individual quota pounds, by adding to a future quota or quotas, if such pounds were lost because of suspension by the Court, and subsequent final Court action has determined that the suspension was incorrect or that no violation was committed. As used herein, the term “final Court action” means that all appeal procedures and periods have concluded and terminated. [Res. 100217 (02/10/17); Res. 130812 (08/13/12); Res. 161211 (12/16/11); Res. 110809 (08/11/09); Res. 280208 §§ II, III (02/28/08); Res. 020304A (03/02/04); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.750]

Subchapter 8. Identification of Gear and Boats

12.12.310 All boats and gear to be marked and registered.

All boats and gear shall be marked as required by PTC 12.12.320 and registered with the Tribal Law Enforcement Division in the name of their legal owner. No gear shall be authorized for use unless it is so marked and registered. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.810]

12.12.320 Identification of gear and boats.

All fishing gear shall be conspicuously marked in such a way that its owner may be identified without the removal of the gear from the water. All unmarked gear and boats which are unattended and any fish found therein may be seized and made subject to forfeiture. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.820]

Subchapter 9. Subsistence Harvesting

12.12.330 Shellfish harvested for subsistence purposes shall not be sold.

It shall be a violation of this Code to sell, barter, or trade any shellfish harvested for subsistence purposes. Any person violating this provision is subject to the penalties in PTC 12.12.1270. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.910]

12.12.340 Quota limits for subsistence harvesting.

Unless the Director determines quota limits require modification to meet the best interests of the shellfish resource, the quota limits in this section apply to subsistence harvesting and may be taken in addition to or separate from commercial quotas. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.920]

12.12.350 Abalone.

Each Tribal member is limited to five abalone daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.925]

12.12.360 Clams.

(a) Subsistence harvesting of intertidal clams shall be limited to a hand-held nonmechanized device. No mechanized equipment may be used.

(b) Each Tribal member is limited to take or possess no more than 50 pounds of clams daily, which may include any clam species except geoducks and horse clams that are set out separately below.

(c) Each Tribal member is limited to 30 horse clams daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.930]

12.12.370 Crab.

(a) Dungeness. Each Tribal member is limited to 12 Dungeness male crabs per day, which shall be a minimum of six and one-quarter inches, caliper measurement, across the back immediately in front of the tips.

(b) Red Rock. Each Tribal member is limited to 24 red rock crabs per day. Both male and female red rock crab may be taken with no size limit. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.935]

12.12.380 Crawfish.

Each Tribal member is limited to 20 pounds of crawfish in the shell daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.940]

12.12.390 Geoduck.

Each Tribal member is limited to six geoducks daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.945]

12.12.400 Mussels.

Each Tribal member is limited to 20 pounds of mussels in the shell daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.950]

12.12.410 Octopus.

Each Tribal member is limited to four octopuses daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.955]

12.12.420 Oysters.

Each Tribal member is limited to 40 oysters daily. The oysters must be shucked on the beach and the shells shall be left in the same location and tide level where taken, unless specifically authorized by ceremonial permit. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.960]

12.12.430 Scallops.

Each Tribal member is limited to 20 pounds of scallops in the shell daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.965]

12.12.440 Sea cucumber.

Each Tribal member is limited to 50 sea cucumbers daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.970]

12.12.450 Sea urchins.

Each Tribal member is limited to 50 green sea urchins daily, and 25 combined purple and red sea urchins daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.975]

12.12.460 Sand shrimp.

Each Tribal member is limited to 20 dozen combined ghost and mud sand shrimp daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.980]

12.12.470 Shrimp – Other species.

Each Tribal member is limited to 20 pounds of whole shrimp in the shell daily. The limit may include any combination of the following: spot, coonstripe, pink, sidestripe, or humpy. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.985]

12.12.480 Squid.

Each Tribal member is limited to 20 pounds of squid daily. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.990]

Subchapter 10. Commercial Harvesting

12.12.490 Clams and mussels.

(a) Only hand-operated nonmechanized devices shall be allowed when harvesting clams or mussels.

(b) All types of clams to be taken for commercial use must be of legal size, and in season during the proposed operations, unless otherwise provided in specially authorized permits for the transplanting of seed to growing areas or for research purposes. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1010]

12.12.500 Crab fishery.

It shall be unlawful to use or operate any shellfish pot gear in the commercial Dungeness crab fishery unless such gear meets the following requirements:

(a) Pot gear must have not less than two escape rings or ports not less than four and one-quarter inches inside diameter.

(b) Escape rings or ports described above must be located in the upper half of the trap.

(c) All buoys attached to the commercial crab gear in Puget Sound waters must consist of a durable material and remain floating on the water’s surface when five pounds of weight is attached, and be conspicuously marked in a manner and place where the owner of such gear may be identified without the necessity for removing the gear from the water. It is unlawful to use bleach or antifreeze bottles or any other container as a float. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1020]

12.12.510 Crawfish fishery.

Crawfish may not be taken for commercial purposes with gear other than shellfish pots and no person may fish more than 200 pots. All undersize crawfish (less than three and one-quarter inches) and female crawfish with eggs or young attached to the abdomen must be immediately returned unharmed to the waters from which taken. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1030]

12.12.520 Geoducks.

(a) Only a manually operated water jet, the nozzle of which shall not exceed five-eighths-inch inside diameter, may be used to commercially harvest geoducks. Use of any other gear requires a special permit issued at the discretion of the Director based on the best interest of the fishery.

(b) It is unlawful to take or fish for geoducks for commercial purposes between one-half hour before official sunset or 7:00 p.m., whichever is earlier, and 7:00 a.m. It is unlawful to possess geoducks taken in violation of this Code.

(c) It is unlawful to harvest geoducks with any instrument that penetrates the skin, neck or body of the geoduck. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1040]

12.12.530 Octopus.

(a) It shall be lawful at any time to harvest octopus for commercial purposes with shellfish pot or ring net gear in any of the Tribal usual and accustomed shellfish areas.

(b) It shall be lawful to harvest octopus for commercial purposes taken incidentally to any other lawful bottom fish or shellfish fishery, except that it shall be unlawful for divers to take octopus for commercial purposes, except by special permit issued by the Director or official designee.

(c) It shall be unlawful to harvest octopus using more than 200 shellfish pots without first having obtained a special permit from the Director or official designee. The permit shall be issued at the discretion of the Director or official designee based on the best interest of the fishery. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1050]

12.12.540 Oysters.

There shall be no pound limit for the commercial harvesting of oysters. It shall be unlawful to harvest oysters commercially that are less than two and one-half inches. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1060]

12.12.550 Sea cucumbers.

It is unlawful to fish for or possess sea cucumbers taken with trawl gear. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1070]

12.12.560 Sea urchins.

(a) Divers fishing for sea urchins may only use hand-operated equipment that does not penetrate the shell.

(b) Sea urchins may not be taken from water shallower than 10 feet below mean lower low water.

(c) Variance from any provision of this section is allowed only if authorized by the Director. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1080]

12.12.570 Shrimp fishery.

It is unlawful to fish or possess shrimp taken for commercial purposes from usual and accustomed shellfish areas except as provided for in this section.

(a) Trawl Gear and Season.

(1) Gear restrictions: beam trawl gear only.

(2) A trawl season shall be set by annual regulation.

(b) Shellfish Pot and Gear and Season.

(1) In all areas there shall be a maximum of 100 pots per harvester.

(2) A shrimp pot season shall be set by regulation. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1090]

12.12.580 Commercial harvests from closed areas prohibited.

It shall be unlawful to commercially harvest shellfish from any Tribally closed area. Any person violating this provision shall be subject to the penalties in PTC 12.12.1260. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1095]

Subchapter 11. Commercial Diving Safety Standards

12.12.590 Scope.

This subchapter applies to all diving and related support operations in connection with any commercial harvesting of shellfish in the usual and accustomed grounds and stations of the Puyallup Tribe established in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974). However, this standard does not apply to any diving operation:

(a) Performed solely for instructional purposes, using open-circuit, compressed air SCUBA and conducted within the no-decompression limits;

(b) Defined as scientific diving and which is under the direction and control of a diving program containing at least the following elements:

(1) Diving safety manual;

(2) Procedures covering all diving operations specific to the program;

(3) Procedures for emergency care, including recompression and evacuation; and

(4) Criteria for diver training and certification. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1110]

12.12.600 Definitions.

As used in this subchapter, the listed terms are defined as follows:

(a) “Acfm” means actual cubic feet per minute.

(b) “ASME Code or equivalent” means ASME (American Society of Mechanical Engineers) Boiler and Pressure Vessel Code, Section VIII, or an equivalent code which the employer can demonstrate to be equally effective.

(d) “Bell” means an enclosed compartment, pressurized (closed bell) or unpressurized (open bell), which allows the diver to be transported to and from the underwater work area and which may be used as a temporary refuge during diving operations.

(e) “Bottom time” means the total elapsed time measured in minutes from the time when the diver leaves the surface in descent to the time that the diver begins ascent.

(f) “Bursting pressure” means the pressure at which a pressure containment device would fail structurally.

(g) “Cylinder” means a pressure vessel for the storage of gases.

(h) “Decompression chamber” means a pressure vessel for human occupancy such as surface decompression chamber, closed bell, or deep diving system used to decompress divers to treat decompression sickness.

(i) “Decompression sickness” means a condition with a variety of symptoms which may result from gas or bubbles in the tissues of divers after pressure reduction.

(j) “Decompression table” means a profile or set of profiles of depth-time relationships for ascent rates and breathing mixtures to be followed after a specific depth-time exposure or exposures.

(k) “Dive location” means a surface or vessel from which a diving operation is conducted.

(l) “Dive-location reserve breathing gas” means a supply system of air or mixed gas (as appropriate) at the dive location which is independent of the primary supply system and sufficient to support divers during the planned decompression.

(m) “Dive team” means divers and support employees involved in a diving operation, including the designated person-in-charge.

(n) “Diver” means an employee working in water using underwater apparatus which supplies compressed breathing gas at the ambient pressure.

(o) “Diver-carried reserve breathing gas” means a diver-carried supply of air or mixed gas (as appropriate) sufficient under standard operating conditions to allow the diver to reach the surface, or another source of breathing gas, or to be reached by a standby diver.

(p) “Diving mode” means a type of diving requiring specific equipment, procedures and techniques (SCUBA, surface-supplied air, or mixed gas).

(q) “Fsw” means feet of seawater (or equivalent static pressure head).

(r) “Heavy gear” means diver-worn deep-sea dress including helmet, breastplate, dry suit, and weighted shoes.

(s) “Hyperbaric conditions” means pressure conditions in excess of surface pressure.

(t) “In-water stage” means a suspended underwater platform which supports a diver in the water.

(u) “Mixed-gas diving” means a diving mode in which the diver is supplied in the water with a breathing gas other than air.

(v) “No-decompression limits” means the depth-time limits of the “no-decompression limits and repetitive dive group designation table for no-decompression air dives,” U.S. Navy Diving Manual or equivalent limits which the employer can demonstrate to be equally effective.

(w) “Over bottom pressure” means the ambient pressure at the depth of the diver (depth x .445 = psig).

(x) “Psi(g)” means pounds per square inch (gauge).

(y) “Scientific diving” means diving performed solely as a necessary part of a scientific, research, survey, or educational activity by persons whose sole purpose for diving is to perform scientific research tasks.

(z) “SCUBA diving” means a diving mode independent of surface supply in which the diver uses open circuit self-contained underwater breathing apparatus.

(aa) “Standby diver” means a diver at the dive location available to assist a diver in the water.

(bb) “Surface-supplied air diving” means a diving mode in which the diver in the water is supplied from the dive location with compressed air for breathing.

(cc) “Treatment table” means a depth-time and breathing gas profile designed to treat decompression sickness.

(dd) “Umbilical” means the composite hose, bundle between a dive location and a diver or bell, or between a diver and a bell, which supplies the diver or bell with breathing gas, communications, power, or heat as appropriate to the diving mode or conditions, and includes a safety line between the diver and the dive location.

(ee) “Volume tank” means a pressure vessel connected to the outlet of a compressor and used as an air reservoir.

(ff) “Working pressure” means the maximum pressure to which a pressure containment device may be exposed under standard operating conditions. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1115]

12.12.610 Qualifications of dive team.

(a) General.

(1) Each dive team member shall have the experience or training necessary to perform assigned tasks in a safe and healthful manner.

(2) Each dive team member shall have experience or training in the following:

(A) The use of tools, equipment and systems relevant to assigned tasks;

(B) Techniques of the assigned diving mode; and

(3) All dive team members shall be trained in cardiopulmonary resuscitation and first aid (American Red Cross standard course or equivalent).

(4) AU dive team members shall provide proof of completion of a SCUBA and surface-supplied air training program from one of the following:

(A) A certified SCUBA and surface-supplied air training program;

(B) A military qualification; or

(5) Dive team members who are exposed to or control the exposure of others to hyperbaric conditions shall be trained in diving-related physics and physiology.

(6) Geoduck Harvesting Proficiency Test.

(A) Purpose and Nature of Geoduck Harvesting Proficiency Test.

(i) The purpose of the proficiency test is to demonstrate the ability to excavate and gather 100 pounds of geoducks in 30 minutes, to ensure the physical ability of each diver as a requirement of dive safety, and to enforce the requirement of this Code that each diver personally harvest his or her quota except as authorized by Subchapter 6 and PTC 12.12.300.

(ii) The proficiency test is intended to replicate typical harvest conditions and to be gender neutral (no bias for either gender).

(iii) The diver operates a high pressure water hose to excavate the geoducks, which typically weigh from one to three pounds each.

(iv) The diver gathers the geoducks and places them into the harvest bag.

(v) When the bag is full it is winched to the surface by the tender or others on board the dive vessel.

(B) Mandatory Requirement.

(i) No person shall be eligible for an individual quota under PTC 12.12.300 without successful completion of the proficiency test and retests as required in this section.

(ii) Each trainee must pass a proficiency test prior to becoming a senior diver and becoming eligible for an individual quota under PTC 12.12.300.

(iii) Each senior diver shall be retested twice each year and must demonstrate the continued ability to pass the proficiency test.

(iv) Any senior diver who does not pass the proficiency test or refuses to take the test shall receive only a quarter-quota until such time as he or she is able to pass the test.

(v) The test may be retaken once within two weeks the first time a senior diver fails to pass; provided, however, that the second test cannot be taken on the same day as the failed test. If the second test is filed, the diver may be retested not more often than once every 180 days. All retesting shall be subject to the availability and schedules of the monitors.

(vi) Any captain or boat owner who does not comply and cooperate with the proficiency tests will not be allowed to participate in harvest operations for seven days; provided, however, that for repeat violations, the captain or boat owner will not be allowed to participate in harvest operations for such longer period as may be determined by the Court in the interest of enforcing compliance with these provisions, not to exceed 180 days.

(i) The proficiency test shall be administered by a shellfish monitor. The monitor may be assisted by one or more additional monitors and/or Law Enforcement.

(ii) The monitor can designate any dive boat for proficiency testing on any harvest day and shall not give advance notice.

(iii) Upon receiving verbal notification from the monitor, the captain of the designated dive boat shall comply and cooperate with the proficiency test.

(iv) Each diver on the designated dive boat shall cooperate with the monitor and take the proficiency test that day, unless that diver has already passed the test during that dive quarter, or that diver has already passed the test twice during that dive year.

(v) Only one diver at a time will be allowed in the water during testing.

(vi) Only one harvest bag at a time will be used.

(vii) The 30-minute test duration shall commence when the diver is on the bottom and asks for the water to be turned on.

(viii) The 30-minute test duration shall be continuous and uninterrupted; the test clock will not stop until the proficiency test is completed.

(ix) The diver must exit the water upon completion of the proficiency test.

(b) Assignments.

(1) Each dive team member shall be assigned tasks in accordance with the diver’s experience or training, except that limited additional tasks may be assigned to a diver undergoing training; provided, that these tasks are performed under the direct supervision of an experienced dive team member.

(2) The boat owner or boat captain designated by the boat owner shall not require a dive team member to be exposed to hyperbaric conditions against the diver’s will, except when necessary to complete decompression or treatment procedures.

(3) The boat owner or boat captain designated by the boat owner shall not permit a dive team member to dive or be otherwise exposed to hyperbaric conditions for the duration of any temporary physical impairment or condition which is known to the boat captain and which is likely to affect adversely the safety or health of a dive team member.

(c) Designated Person-In-Charge. The boat owner or boat captain designated by the boat owner shall be at the dive location in charge of all aspects of the diving operation affecting the safety and health of dive team members. [Res. 220609 (06/22/09); Res. 280208 § IV (02/28/08); Res. 020304 (03/02/04); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1120]

12.12.620 Medical certification of dive team members – Alcohol and drug safety policy.

(a) General.

(1) As used in this Code, the term “dive team member” shall mean and include any diver, tender or captain.

(2) The boat owner and the boat captain shall each be responsible for determining that dive team members who are, or are likely to be, exposed to hyperbaric conditions are medically fit to perform assigned tasks in a safe and healthful manner.

(3) The Tribe shall provide each dive team member who is, or is likely to be, exposed to hyperbaric conditions with all medical examinations required by this standard; provided, however, that the dive team member shall be solely responsible for scheduling and completion of examinations.

(4) All medical examinations required by this standard shall be performed by, or under the direction of, a physician at no cost to the dive team member, provided the dive team member does not miss any scheduled appointment. If an appointment must be rescheduled due to actions of the dive team member, the dive team member shall pay the cost.

(b) Physician Qualifications. Preferably, examining physicians should be familiar with and experienced in the physical requirements and medical aspects of compressed gas diving. In the absence of an examiner with knowledge of hyperbaric medicine, examinations should be done by a physician qualified to understand the need and purpose of the examination, and who has prior experience in examining individuals who will be exposed to strenuous work conditions and hazardous environments.

(c) Frequency of Examination. All diving personnel must undergo a thorough physical examination prior to being exposed to hyperbaric conditions. Subsequent to initial exam, all diving personnel must have a complete physical exam annually. Any diver who is not in compliance with this section will not be issued a quota and will not be eligible to dive until the beginning of the next quarter after the physical exam has been passed.

(d) Information Provided to Examining Physician. The Tribe shall provide the following information to the examining physician:

(1) A copy of the medical requirements of this standard; and

(2) A summary of the nature and extent of hyperbaric conditions to which the dive team member will be exposed, including diving modes and types of work to be assigned.

(e) Content of Medical Examinations. Medical examinations conducted initially and annually shall consist of the following:

(1) Medical history;

(2) Diving-related work history;

(3) Basic physical examination;

(4) Any additional tests the physician considers necessary;

(5) A drug test as required by subsection (f) of this section.

(f) Alcohol and Drug Safety Policy.

(1) The dive fishery is an ultra-hazardous occupation. Intoxication or use of illegal drugs by any dive team member would create unnecessary and unacceptable risks to that person and to other fishery workers.

(A) Reliable testing technologies exist which can detect intoxication or illegal drug use and thereby reduce the risks of death or serious injury in the dive fishery.

(B) Urine testing is reliable but subject to evasion by specimen substitution or adulteration unless the collection of the specimen is directly observed. Evasion has been attempted by divers subject to this Shellfish Code when direct observation was not required.

(C) Same-sex direct observation of urine specimen collection is a minimal intrusion on privacy which is successfully used by other governments, including state and federal agencies, for safety-sensitive occupations and is acceptable under constitutional standards that are similar to those set forth in the Indian Civil Rights Act. Since direct observation collection was implemented pursuant to the policies and procedures of the previously approved Testing Facility, the vast majority of divers have participated without complaint.

(2) As used in this Shellfish Code, “Testing Facility” shall mean and refer to the Sterling Reference Laboratories and “Treatment Facility” shall mean and refer to the Puyallup Tribal Treatment Center or an alcohol/drug treatment program approved by the state of Washington pursuant to Chapter 70.96A RCW, unless the Tribal Council designates by formal resolution a different or additional entity or entities and such resolution is posted at the Tribal Shellfish Department and the Tribal Law Enforcement Division.

(3) Every dive team member shall submit to urine tests (UAs) as follows:

(A) Biannual. Once during each of the months of February and August; provided, however, that during 2015 only, the biannual testing period for August shall be extended to and including September 10, 2015.

(B) Initial. Once upon admission to the Shellfish Program as a dive team member.

(i) No Exceptions or Extensions. A dive team member who is notified to do a random test shall comply within 24 hours from the time of notification. No exceptions or extensions of time shall be allowed.

(ii) Selection Process. The selection of dive team members for random drug testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with dive team members’ Tribal identification numbers, or other comparable identifying numbers.

(iii) Equal Chance Each Time. Under the testing frequency and selection process used, each covered dive team member shall have an equal chance of being tested each time selections are made and a dive team member’s chance of selection shall continue to exist throughout his or her participation in the dive fishery.

(iv) Testing Frequency. The minimum annual percentage rate for random drug testing shall be 50 percent of covered dive team members. The Testing Facility shall randomly select a sufficient number of covered dive team members for testing during each calendar year to equal an annual rate not less than the minimum annual percentage rate for random drug testing established herein. The Testing Facility shall ensure that random drug tests conducted under this subsection are unannounced and that the dates for administering random tests are spread reasonably throughout the calendar year.

(D) Reasonable Basis. Immediately if requested by the Shellfish Enforcement Officer pursuant to this subsection. The Shellfish Enforcement Officer shall request an immediate UA if he has a reasonable basis to believe that the dive team member may have violated subsection (f)(5)(F) of this section.

(E) Location and Procedures. All testing under this subsection (f)(3) shall be done at the location and under the procedures of the designated Testing Facility. References in such procedures to “employer” or “employer representative” and the like shall be understood as referring to the Shellfish Enforcement Officer, notwithstanding the absence of an employment relationship to the dive team member.

(4) Every dive team member shall submit to a test to indicate the percentage by weight of alcohol in the blood immediately if requested by the Shellfish Enforcement Officer pursuant to this subsection. The Shellfish Enforcement Officer shall request an immediate alcohol test if he has a reasonable basis to believe that the dive team member may have violated subsection (f)(5)(F) of this section.

(5) It shall be a violation of this Code for any dive team member to:

(A) Fail or refuse to submit timely to any UA or alcohol test required by this Code; provided, however, that a dilute test result shall not be a violation;

(B) Have a positive UA; provided, however, that a dilute test result shall not be a violation;

(C) Be convicted under a law of a federally recognized Indian tribe or a state or the United States related to a controlled substance; provided, however, that the Tribal Court shall have no authority under this subsection (f)(5)(C) to review whether an individual violated any law on which such conviction is based; provided further, that this subsection (f)(5)(C) shall not apply to any conviction based solely on an act or acts committed prior to the effective date of this subsection;

(D) Knowingly commit an act violating a law of a federally recognized Indian tribe or a state or the United States related to a controlled substance; provided, however, that this subsection (f)(5)(D) shall not apply if the individual is acquitted of all charges based on that act; provided further, that this subsection (f)(5)(D) shall not apply to any act committed prior to the effective date of this subsection;

(E) Violate the terms of any treatment order entered by the Tribal Court pursuant to this subchapter;

(F) Act or attempt to act as a dive team member, or engage or attempt to engage in Treaty shellfish harvest activity:

(i) Within eight hours after the consumption of any alcoholic beverage;

(ii) While under the influence of alcohol;

(iii) While using any drug that affects the person’s faculties in any way contrary to safety;

(iv) While having .04 percent by weight or more alcohol in the blood; or

(v) While on a vessel with knowledge that alcohol or any controlled substance is carried on the vessel; or

(G) Fail or refuse to authorize the release of test information or medical information required for the enforcement of this subchapter or fail or refuse to sign any release form for such purpose immediately upon request by any Shellfish Department employee, Shellfish Enforcement Officer, Tribal Prosecutor, or Testing or Treatment Facility.

(6) The Shellfish Enforcement Officer shall review test results and notify the Tribal Prosecutor of positive test results, failure or refusal to submit to a test or release test results or other violations of this chapter.

(7) No citation or complaint alleging a violation of subsection (f)(5) of this section shall be filed more than two years after the conviction or act or occurrence on which it is based.

(8) Upon ex parte application of the Tribal Prosecutor, the Tribal Court shall determine whether the application together with any supporting evidence establishes probable cause to believe that a violation of subsection (f)(5) of this section has occurred. Upon making such a finding, the Tribal Court shall issue a temporary restraining order, without bond, temporarily suspending the Shellfish Permit of such person and ordering such person to immediately cease participation in the fishery. A temporary restraining order issued under this subsection shall be valid for not more than 30 days after notice of it is given to the person restrained unless the Court orders otherwise and may be renewed for the same or a lesser period of time not more than once.

(9) Following notice to all parties and an opportunity to be heard in Court or through affidavits, the Court shall consider entering a preliminary injunction, which shall remain in effect until final judgment in the case, suspending the shellfish permit of a dive team member and ordering such person to refrain from participation in the fishery while the case is pending. The request for a preliminary injunction shall be granted if the Tribal Prosecutor demonstrates a substantial likelihood that the dive team member violated subsection (f)(5) of this section. No bond shall be required.

(10) The Tribal Court shall not reinstate shellfish privileges unless after a hearing, after reasonable notice to the Tribal Prosecutor, based upon written findings by the Court that the person suspended has provided proof satisfactory to the Court of a negative UA and compliance with treatment recommendations submitted pursuant to subsection (f)(11) of this section. No reinstatement shall take effect until after the first day of the next or any succeeding shellfish management quarter. The period of suspension shall not be less than 90 days for a first violation, nor less than 180 days for the second violation, nor less than one year for a third or subsequent violation. Notwithstanding any reinstatement, no lost quota, nor any portion thereof, shall be restored except pursuant to PTC 12.12.300(f).

(11) Any person suspended shall submit to a drug and alcohol evaluation by the Treatment Center. The Treatment Center shall prepare a report recommending whether the person suspended should be considered “NSP” (no significant problem), “SP-1” (significant problem requiring a one-year treatment program), or “SP-2” (Significant problem requiring a two-year treatment program). The Court shall hold a hearing to consider whether the person suspended should be ordered to complete a treatment program. The Treatment Center’s report shall be filed with the Court and served on the parties not less than 14 days prior to the hearing.

(12) Deferred Prosecution. Any person subject to a restraining order or preliminary injunction under subsection (f)(8) or (9) of this section may petition the Court in which the order is pending for an order granting a deferred prosecution.

(A) Limitation. No person shall be entitled to seek a deferred prosecution if an order granting a deferred prosecution has been granted to such person under this Code during the preceding 48 months.

(B) Contents and Support of Petition. The petition for deferred prosecution:

(i) Must contain the petitioner’s sworn admission to specifically articulated facts constituting a violation of subsection (f)(5) of this section, stipulation to the admissibility and sufficiency of the facts contained in the written Police report and/or the Testing Facility report, acknowledgment that the Court will not accept a petition for deferred prosecution from a person who sincerely believes that he or she is innocent of the alleged violation of the Shellfish Code or sincerely believes that he or she does not, in fact, suffer from a problem with drugs and/or alcohol, and the written acknowledgement of the petitioner that she or he suffers from a problem with alcohol and/or drugs; the admissions and acknowledgments shall be automatically admissible in Court in proceedings to grant or revoke the deferred prosecution, but shall not be admissible in any other proceeding unless the deferred prosecution is revoked;

(ii) Must be supported by a Treatment Facility report indicating either “SP-1” or “SP-2” and proposing a corresponding treatment program that meets the requirements of subsection (f)(12)(C) of this section; the Treatment Facility report shall be filed with the petition for deferred prosecution and served on the prosecutor;

(iii) Must contain the signed promise of the petitioner to comply with all the requirements of the treatment program proposed by the Treatment Facility report if the deferred prosecution is granted; and

(iv) Must contain the specific written acknowledgment of the petitioner that if the deferred prosecution is revoked, the petitioner’s admission to facts under subsection (f)(12)(B)(i) of this section shall be automatically admissible and sufficient to support a finding that the petitioner committed a violation of this Shellfish Code, and that the Court would summarily enter judgment to that effect.

If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petition is inadmissible in any proceeding or trial.

(C) Contents of Treatment Plan. The written treatment plan must be contained in the Treatment Facility report filed with the petition for deferred prosecution as required in subsection (f)(12)(B)(ii) of this section. The written treatment plan shall contain the following requirements:

(i) Total abstinence from alcohol and all other nonprescribed mind-altering drugs;

(ii) Participation in an intensive inpatient or intensive outpatient program in the Tribal Treatment Center or a state-approved alcohol/drug treatment program;

(iii) Participation in a minimum of two meetings per week of an alcoholism and/or drug self-help recovery support group, as determined by the Treatment Facility, for the duration of the treatment plan;

(iv) Participation in an alcoholism and/or drug self-help recovery support group, as determined by the Treatment Facility, from the date of Court approval of the treatment plan to entry into intensive treatment;

(v) Not less than weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment;

(vi) Not less than monthly outpatient contact, group or individual, for the remainder of the deferred prosecution period;

(vii) The decision to include the use of prescribed drugs, such as disulfiram, as a condition of treatment, shall be reserved to the Treatment Facility and the petitioner’s physician;

(viii) All treatment within the purview of this section shall occur within or be approved by the Treatment Facility or a state-approved alcoholism/drug treatment program as described in Chapter 70.96A RCW;

(ix) Signature of the petitioner agreeing to the terms and conditions of the treatment plan;

(x) The promise of the Treatment Facility to provide the Court and the parties with a statement every three months for the first year, and for two-year programs, every six months for the second year regarding (a) the petitioner’s cooperation with the treatment plan, and (b) the petitioner’s progress or failure in treatment. These statements shall be made as a declaration by the person who is personally responsible for providing the treatment.

(xi) The promise of the Treatment Facility to immediately report to the Court and parties any noncompliance by the petitioner with the requirements of his or her treatment ordered under this deferred prosecution program.

(D) Hearing on Petition for Deferred Prosecution.

(i) The petition for deferred prosecution and the Treatment Center report shall be filed with the Court and served on the prosecutor not less than 14 days prior to the hearing on the petition.

(ii) No petition shall be granted by the Court without a hearing in open court attended personally by the petitioner.

(iii) Before entering an order for deferred prosecution, the Court shall make specific findings that: (a) The petitioner has stipulated to facts constituting a violation of the Shellfish Code and has stipulated to the admissibility and sufficiency of the facts as contained in the written Police report and/or the Testing Facility report; (b) the petitioner has stipulated to the admissibility of these facts in any hearing on the underlying violation held subsequent to revocation of the order granting deferred prosecution, and that in such a hearing such stipulated facts would be used to enter a finding that the petitioner did commit the violation; (c) the petitioner has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to cross-examine, the right to present evidence in his or her defense, and the right to a jury trial; and (d) the petitioner’s statements were made knowingly and voluntarily. Such findings shall be included in the order granting deferred prosecution.

(iv) If the Court approves the treatment plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, an entry shall be made upon the person’s Court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan shall be attached to the docket, which shall then be removed from the regular Court dockets and filed in a special Court deferred prosecution file.

(v) If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petitioner’s statements in the petition or from the Treatment Center report is inadmissible in any trial on the alleged violations, but shall be available for use after a determination that a violation was committed in determining an appropriate sanction.

(vi) An order granting deferred prosecution must require compliance with the program proposed by the Treatment Center report for the period therein specified (one year or two years) and require that the petitioner not violate subsection (f)(5) of this section during the term of the deferred prosecution.

(vii) An order granting deferred prosecution shall terminate the restraining order or preliminary injunction and enjoin the petitioner from participation in the dive fishery for a total period of 90 days of suspension with credit for days of suspension from the start of the case to date.

(viii) Requests for restoration of lost pounds may be made upon successful completion of the deferred prosecution program under the provisions of subsection (f)(12)(F) of this section.

(E) Revocation of Deferred Prosecution. If a petitioner, who has been accepted for a deferred prosecution, fails or neglects to carry out and fulfill any term or condition of the petitioner’s treatment plan or any term or condition of the deferred prosecution order, or violates any provision of subsection (f)(5) of this section, the Treatment Facility shall immediately report such breach to the Court, the prosecutor, and the petitioner or petitioner’s attorney or spokesperson of record, together with its recommendation. The Court upon receiving such a report shall hold a hearing to determine whether the petitioner should be removed from the deferred prosecution program. At the hearing, evidence shall be taken of the petitioner’s alleged failure to comply with the treatment plan and the petitioner shall have the right to present evidence on his or her own behalf. The Court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution. If removed from deferred prosecution, the Court shall enter judgment based on the sworn admission of facts contained in the petition and any other evidence adduced at the hearing, and the Court shall then order a period of suspension as provided in subsection (f)(10) of this section. Such period of suspension shall run consecutive to any other pending suspension.

(F) Order on Successful Completion of Deferred Prosecution. A hearing shall be held after the conclusion of the one-year or two-year program. The hearing shall be held on at least 14 days notice and may be noted by either party and scheduled by the Court Clerk. At the conclusion of the hearing, if it appears to the Court that the petitioner satisfactorily complied with the order of deferred prosecution and the treatment plan, the Court shall thereupon dismiss with prejudice the allegations upon which the original temporary suspension was based. In such case, the petitioner shall be entitled to seek restoration from the Director of pounds that were lost, if any, during the pendency of the temporary restraining order, preliminary injunction, and order granting deferred prosecution, for not more than one quarter of lost quota, notwithstanding the absence of the criteria of PTC 12.12.300(f); provided, that all appeal procedures and periods applicable to the order on successful completion of deferred prosecution have concluded and terminated.

(13) Any party aggrieved by the decision of the Tribal Court may appeal to the Tribal Court of Appeals. The decision of the Tribal Court shall not be stayed pending the appeal.

(14) Inactive Status. A dive team member shall not be required to submit to random tests under subsection (f)(3) of this section when on inactive status. A dive team member may go on inactive status solely by providing written notice to the Shellfish Director and the Tribal Prosecutor prior to the end of the month immediately preceding the quarter or quarters for which inactive status is sought. A dive team member on inactive status shall have no right to harvest privileges or quotas nor to be present on any dive boat during harvest activities. Inactive status can be rescinded only by written notice to the Shellfish Director and Tribal Prosecutor. In no event shall rescission of inactive status be effective prior to the end of the next quarter.

(g) Absolute Disqualification. The basis for absolute disqualification for a diving examination includes:

(1) History of epileptiform disease.

(2) Cystic or obstructive disease of lungs.

(3) Chronic inability to equalize sinus and middle ear pressure.

(4) Significant central nervous system disease.

(5) Certain joint disorders about the shoulder, hip or knee.

(6) Certain cardiac abnormalities, e.g., pathological heart block, valvular disease, interventricular septal defects, etc.

(h) Relative Disqualification. The basis for relative disqualification for a diving examination includes:

(1) Diabetes.

(2) Weight.

(3) History of neurological decompression sickness.

(4) Perforation of tympanic membrane.

(5) Grossly impaired hearing.

(6) History of severe motion sickness.

(7) Seriously impaired pulmonary function.

(8) Pulmonary fibrosis.

(9) Chronic alcoholism.

(10) Peptic ulcer.

(11) Chronic hepatitis.

(12) Sickle cell anemia.

(13) Disabilities requiring certain medications for control.

(14) Renal colic caused by kidney stones.

(i) Temporary Disqualification. The basis for temporary disqualification for a diving examination includes:

(1) Acute alcoholism and drug intoxication.

(2) Acute gastrointestinal syndrome.

(3) Acute infections: skin, upper respiratory, ear, etc.

(4) Recent incident of serious decompression sickness.

(j) Reports and Records. Any person subject to the medical certification or alcohol and drug safety requirements of this subchapter shall be deemed to have irrevocably consented to the release of all reports, records and information to the extent reasonably necessary for the administration of this Code, and shall properly execute any written release for such purpose upon request by any Shellfish Department employee, Shellfish Enforcement Officer, Tribal Prosecutor, or Testing or Treatment Facility. Any test information obtained under this section may be evaluated and considered in determining a person’s qualifications under this section and may be used as evidence in any Tribal Court proceeding under this Shellfish Code. [Res. 020921B (09/02/21); Res. 200815A (08/20/15); Res. 221012 (10/22/12); Res. 280208 § V (02/28/08); Res. 180106A §§ IV, V (01/18/06); Res. 180106 (01/18/06); Res. 020304B (03/02/04); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1122]

12.12.630 Dive team captains and tenders.

(a) General Qualifications.

(1) All captains and tenders shall provide proof of completion of a captain or tender class, as appropriate, approved by the Puyallup Tribe’s Shellfish Department.

(2) All captains and tenders shall provide proof of training in cardiopulmonary resuscitation and first aid (American Red Cross standard or equivalent).

(3) All captains and tenders must be either Puyallup Tribal members or the spouses of Puyallup Tribal members who are eligible under and fulfill all requirements of Subchapter 6 of this Code.

(b) Physical Qualifications.

(1) Captains and tenders must undergo a thorough physical examination at Puyallup Tribal Health Authority, and have the examining physician verify that they are in good health, prior to performing any work as a captain or tender. Subsequent to the initial exam all tenders must be reexamined at 12-month intervals.

(2) Captains and tenders are subject to all of the requirements of PTC 12.12.620(f) (Alcohol and Drug Safety Policy).

(3) Captains and tenders must demonstrate the ability to lift at least 50 pounds.

(c) The decision to hire a tender and the rate of pay for a tender shall be within the sole discretion of the boat captain. Boat captains can hire only tenders who meet the qualifications set forth above. [Res. 280208 § VI (02/28/08); Res. 161203 (12/16/03); prior code § 12.05.1123]

12.12.640 Safe practices manual.

(a) The boat owner shall develop and maintain a safe practices manual which shall be made available at the dive location to each dive team member.

(b) The safe practices manual shall contain a copy of this Code and the boat owner’s policies for implementing the requirements of this Code.

(1) Safety procedures and checklists for diving operations;

(2) Assignments and responsibilities of the dive team members;

(3) Equipment procedures and checklists; and

(4) Emergency procedures for fire, equipment failure, adverse environmental conditions, and medical illness and injury. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1125]

12.12.650 Pre-dive procedures.

(a) The boat owner or designated agent shall comply with the following requirements prior to each diving operation, unless otherwise specified.

(b) A list shall be kept at the dive location of the telephone or call numbers of the following:

(1) An operational decompression chamber (if not at the dive location);

(2) Accessible hospitals;

(3) Available physicians;

(4) Available means of transportation; and

(5) The nearest U.S. Coast Guard Rescue Coordination Center.

(c) A first aid kit appropriate for the diving operation and approved by a physician shall be available at the dive location.

(1) When used in a decompression chamber or bell, the first aid kit shall be suitable for use under hyperbaric conditions.

(2) In addition to any other first aid supplies, an American Red Cross standard first aid handbook or equivalent, oxygen therapy equipment, portable suction pump, and a bag-type manual resuscitator with transparent mask and tubing shall be available at the dive location.

(d) Planning of a diving operation shall include an assessment of the safety and health aspects of the following:

(1) Diving mode;

(2) Surface and underwater conditions and hazards;

(3) Breathing gas supply (including reserves);

(4) Thermal protection;

(5) Diving equipment and systems;

(6) Dive team assignments and physical fitness of dive team members (including any impairment known to the boat owner or agent);

(7) Repetitive dive designation or residual inert gas status of dive team members;

(8) Decompression and treatment procedures (including altitude corrections); and

(9) Emergency procedures.

(e) To minimize hazards to the dive team, diving operations shall be coordinated with other activities in the vicinity which are likely to interfere with the diving operation.

(f) Dive team members shall be briefed by the boat owner or designated agent on:

(1) The tasks to be undertaken;

(2) Safety procedures for the diving mode;

(3) Any unusual hazards or environmental conditions likely to affect the safety of the diving operation; and

(4) Any modifications to operating procedures necessitated by the specific diving operation.

(g) Prior to making individual dive team member assignments, the boat owner or designated agent shall inquire into the dive team member’s current state of physical fitness, and indicate to the dive team member the procedure for reporting physical problems or adverse physiological effects during and after the dive.

(h) The breathing gas supply system, including reserve breathing gas supplies, masks, helmets, thermal protection, and bell handling mechanism (when appropriate) shall be inspected by dive team members prior to each dive.

(i) When diving from surfaces other than vessels in areas capable of supporting marine traffic, a rigid replica of the international code flag “A” at least one meter in height and a sport diving flag shall be displayed at the dive location in a manner which allows all-around visibility, and shall be illuminated during night diving operations. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1130]

12.12.660 Procedures during dive.

The boat owner or designated agent shall comply with the following requirements which are applicable to each diving operation unless otherwise specified:

(a) A means capable of supporting the diver shall be provided for entering and exiting the water.

(b) The means provided for exiting the water shall extend below the water surface.

(d) An operational two-way voice communication system shall be used between:

(1) Each surface-supplied air or mixed-gas diver and a dive team member at the dive location or bell (when provided or required);

(2) The bell and the dive location.

(e) An operational, two-way communication system shall be available at the dive location to obtain emergency assistance.

(f) Decompression, repetitive, and no-decompression tables (as appropriate) shall be at the dive locations.

(g) A depth-time profile, including when appropriate any breathing gas changes, shall be maintained for each diver during the dive including decompression.

(h) The working interval of a dive shall be terminated when:

(1) A diver requests termination;

(2) A diver fails to respond correctly to communications or signals from a dive team member;

(3) Communications are lost and cannot be quickly re-established between the diver and a dive team member at the dive location, and between the designated person-in-charge and the person controlling the vessel in liveboating operations; or

(4) A diver begins to use diver-carried reserve breathing gas or the dive-location reserve breathing gas.

(i) When working alone, a topside tender shall wear an approved personal flotation device. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1135]

12.12.670 Post-dive procedures.

The boat owner or designated agent shall comply with the following requirements which are applicable after each diving operation, unless otherwise specified.

(a) After the completion of any dive, the boat owner or designated agent shall:

(1) Check the physical condition of the diver;

(2) Instruct the diver to report any physical problems or adverse physiological effects including symptoms of decompression sickness;

(3) Advise the diver of the location of a decompression chamber which is ready for use; and

(4) Alert the diver to the potential hazards of flying after diving.

(b) For any dive outside the no-decompression limits, deeper than 100 fsw or using mixed gas as a breathing mixture, the boat owner or designated agent shall instruct the diver to remain awake and in the vicinity of the decompression chamber which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate).

(c) A decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (six ATA) shall be available at the dive location for:

(1) Surface-supplied air diving to depths deeper than 100 fsw and shallower than 220 fsw;

(2) Mixed-gas diving shallower than 300 fsw; or

(3) Diving outside the no-decompression limits shallower than 300 fsw.

(d) A decompression chamber capable of recompressing the diver at the surface to the maximum depth of the dive shall be available at the dive location for dives deeper than 300 fsw.

(e) The decompression chamber shall be:

(1) Dual-lock;

(2) Multiplace; and

(3) Located within five minutes of the dive location.

(f) The decompression chamber shall be equipped with:

(1) A pressure gauge for each pressurized compartment designed for human occupancy;

(2) A built-in-breathing-system with a minimum of one mask per occupant;

(3) A two-way voice communication system between occupants and a dive team member at the dive location;

(4) A view port; and

(5) Illumination capability to light the interior.

(g) Treatment tables, treatment gas appropriate to the diving mode, and sufficient gas to conduct treatment shall be available at the dive location.

(h) A dive team member shall be available at the dive location during and for at least one hour after the dive to operate the decompression chamber (when required or provided).

(i) The following information shall be recorded and maintained for each diving operation:

(1) Names of dive team members including designated person-in-charge;

(2) Date, time, and location;

(3) Diving modes used;

(4) General nature of work performed;

(5) Approximate underwater and surface conditions (visibility, water temperature and current); and

(6) Maximum depth and bottom time for each diver.

(j) For each dive outside the no-decompression limits, deeper than 100 fsw or using mixed gas, the following additional information shall be recorded and maintained:

(1) Depth-time and breathing gas profiles;

(2) Decompression table designation (including modification); and

(3) Elapsed time since last pressure exposure if less than 24 hours or repetitive dive designation for each diver.

(k) For each dive in which decompression sickness is suspected or symptoms are evident, the following additional information shall be recorded and maintained:

(1) Description of decompression sickness symptoms (including depth and time of onset); and

(2) Description and results of treatment.

(l) The boat owner or designated agent shall conduct a decompressure procedure assessment, which shall include the following:

(1) Investigate and evaluate each incident of decompression sickness based on the recorded information, consideration of the past performance of decompression table used, and individual susceptibility;

(2) Take appropriate corrective action to reduce the probability of recurrence of decompression sickness; and

(3) Prepare a written evaluation of the decompression procedure assessment, including any corrective action taken, within 45 days of the incident of decompression sickness, and submit it to the Shellfish Director. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1140]

12.12.680 SCUBA diving.

Boat owners or their designated agents engaged in SCUBA diving shall comply with the following requirements, unless otherwise specified.

(a) SCUBA diving shall not be conducted:

(1) At depths deeper than 130 fsw;

(2) At depths deeper than 100 fsw or outside the no-decompression limits unless a decompression chamber is ready for use;

(3) Against currents exceeding one knot unless line-tended; or

(4) In enclosed or physically confining spaces unless line-tended.

(b) A standby diver shall be available while a diver is in the water.

(c) A diver shall be line-tended from the surface, or accompanied by another diver in the water in continuous visual contact during the diving operation.

(d) A diver shall be stationed at the underwater point of entry when diving is conducted in enclosed or physically confining spaces.

(e) A diver-carried reserve breathing gas supply shall be provided for each diver consisting of:

(1) A manual reserve (J valve); or

(2) An independent reserve cylinder with a separate regulator or connected to the underwater breathing apparatus.

(f) The valve of the reserve breathing gas supply shall be in the closed position prior to the dive. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1145]

12.12.690 Surface-supplied air diving.

Boat owners or their designated agents engaged in surface-supplied air diving shall comply with the following requirements, unless otherwise specified.

(a) Surface-supplied air diving shall not be conducted at depths deeper than 190 fsw, except that dives with bottom times of 30 minutes or less may be conducted to depths of 220 fsw.

(b) A decompression chamber shall be ready for use at the dive location for any dive outside the no-decompression limits or deeper than 100 fsw.

(c) A bell shall be used for dives with an in-water decompression time greater than 120 minutes, except when heavy gear is worn or diving is conducted in physically confining spaces.

(d) Each diver shall be continuously tended while in the water, which may be done by continuous communication.

(e) Each diving operation shall have a primary breathing gas supply sufficient to support divers for the duration of the planned dive including decompression.

(f) Each diver shall carry a reserve breathing gas supply on all dives.

(g) For dives deeper than 100 fsw or outside the no-decompression limits:

(1) A separate dive team member shall tend each diver in the water;

(2) A standby diver shall be available while a diver is in the water;

(3) A diver-carried reserve breathing gas supply shall be provided for each diver except when heavy gear is worn; and

(4) A dive-location reserve breathing gas supply shall be provided.

(h) For heavy-gear diving deeper than 100 fsw or outside the no-decompression limits:

(1) An extra breathing gas hose capable of supplying breathing gas to the diver in the water shall be available to the standby diver.

(2) An in-water stage shall be provided to divers in the water.

(i) Except when heavy gear is worn or where physical space does not permit, a diver-carried reserve breathing gas supply shall be provided whenever the diver is prevented by the configuration of the dive area from ascending directly to the surface. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1150]

12.12.700 Mixed-gas diving.

Boat owners or their designated agents engaged in mixed-gas diving shall comply with the following requirements, unless otherwise specified.

(a) Mixed-gas diving shall be conducted only when:

(1) A decompression chamber is ready for use at the dive location; and

(A) A bell is used at depths greater than 220 fsw or when the dive involves in-water decompression time of greater than 120 minutes, except when heavy gear is worn or when diving in physically confining spaces; or

(B) A closed bell is used at depths greater than 300 fsw, except when diving is conducted in physically confining spaces.

(b) A separate dive team member shall tend each diver in the water.

(d) A diver shall be stationed at the underwater point of entry when diving is conducted in enclosed or physically confining spaces.

(e) Each diving operation shall have a primary breathing gas supply sufficient to support divers for the duration of the planned dive including decompression.

(f) When heavy gear is worn:

(1) An extra breathing gas hose capable of supplying breathing gas to the diver in the water shall be available to the standby diver; and

(2) An in-water stage shall be provided to divers in the water.

(g) An in-water stage shall be provided for divers without access to a bell for dives deeper than 100 fsw or outside the no-decompression limits.

(h) When a closed bell is used, one dive team member in the bell shall be available and tend the diver in the water.

(i) Except when heavy gear is worn or where physical space does not permit a diver-carried reserve, breathing gas supply shall be provided for each diver:

(1) Diving deeper than 100 fsw or outside the no-decompression limits; or

(2) Prevented by the configuration of the dive area from directly ascending to the surface. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1160]

12.12.710 Liveboating.

Boat owners or their designated agents engaged in diving operations involving liveboating shall comply with the following requirements:

(a) Limits. Diving operations involving liveboating shall not be conducted:

(1) With an in-water decompression time of greater than 120 minutes;

(2) Using surface supplied air at depths deeper than 190 fsw, except that dives with bottom times of 30 minutes or less may be conducted to depths of 220 fsw;

(3) Using mixed gas at depths greater than 220 fsw;

(4) In rough seas which significantly impede diver mobility or work function;

(5) In other than daylight hours.

(b) Procedures.

(1) The propeller of the vessel shall be stopped before the diver enters or exits the water;

(2) A device shall be used which minimizes the possibility of entanglement of the diver’s hose in the propeller of the vessel;

(3) Two-way voice communication between the designated person in charge and the person controlling the vessel shall be available while the diver is in the water;

(4) A standby diver shall be available while a diver is in the water;

(5) A diver-carried reserve breathing gas supply shall be carried by each diver engaged in liveboating operations. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1165]

12.12.715 Equipment.

All boat owners or their designated agents shall comply with the following requirements, unless otherwise specified:

(a) Each equipment modification, repair, test, calibration or maintenance service shall be recorded by means of a tagging or log system, and include the date and nature of work performed, and the name or initials of the person performing the work.

(b) Air Compressor Systems.

(1) Compressors used to supply air to the diver shall be of the two-stage reciprocating type and shall be equipped with a volume tank with a check valve on the inlet side, a pressure gauge, a relief valve, and a drain valve.

(2) A compressor shall be constructed and situated so as to avoid entry of contaminated air into the air supply system and shall be equipped with a suitable in-line particulate filter followed by a bed of activated charcoal and, if necessary, a moisture absorber to further assure breathing air quality. These filters should be placed before any receiver and after the discharge in the compressor.

(3) Manifold supply pressure shall be set at a minimum of 90 PSI over bottom pressure for depths to 60 fsw and 135 PSI over bottom pressure for depths over 60 fsw.

(A) If a carbon monoxide alarm is used, it shall be calibrated to activate at or below 20 parts per million carbon monoxide at least once per month. A calibration and maintenance log shall be kept and shall be available for review and copying by the Director or his or her designee. The log shall identify the test method, date, time of test, results, and the name of the person performing the test. The log shall be retained for at least one year from the date of the test.

(B) If the use of an alarm at the compressor will not effectively provide warning to the diver or tender of a carbon monoxide problem, a remote alarm or other means of warning the diver shall be used.

(C) Breathing air couplings shall be incompatible with outlets for nonrespirable plant air or other gas systems to prevent inadvertent serving of air line breathing apparatus with nonrespirable gases.

(4) Respirable air supplied to a diver shall not contain:

(A) A level of carbon monoxide (CO) greater than 20 ppm;

(B) A level of carbon dioxide (CO2) greater than 1,000 ppm;

(D) A noxious or pronounced odor.

(5) Compressor systems providing surface air to divers must have a low pressure warning device installed at the air purification system inlet to alert dive tenders of low air pressure. The minimum alarm setting shall be 10 psi below the normal cycling rate of the dive air compressor.

(6) The output of air compressor systems shall be tested for air purity every six months by means of samples taken at the connection to the distribution system, except that non-oil-lubricated compressors need not be tested for oil mist.

(1) Breathing gas supply hoses shall:

(A) Have a working pressure at least equal to the working pressure of the total breathing gas system;

(B) Have a rated bursting pressure at least equal to four times the working pressure;

(D) Have their open ends taped, capped or plugged when not in use.

(2) Breathing gas supply hose connectors shall:

(A) Be made of corrosion-resistant materials;

(B) Have a working pressure at least equal to the working pressure of the hose to which they are attached; and

(3) Umbilicals shall:

(A) Include a safety line which shall be attached in a manner to remove strain from the air supply hose;

(B) Be marked in 10-foot increments to 100 feet beginning at the diver’s end, and in 50-foot increments thereafter;

(D) Have a working pressure greater than the pressure equivalent to the maximum depth of the dive (relative to the supply source) plus 100 psi.

(d) Buoyancy Control.

(1) Helmets or masks connected directly to the dry suit or other buoyancy-changing equipment shall be equipped with an exhaust valve.

(2) A dry suit or other buoyancy-changing equipment not directly connected to the helmet or mask shall be equipped with an exhaust valve.

(3) When used for SCUBA diving, a buoyancy compensator shall have an inflation source separate from the breathing gas supply.

(4) An inflatable flotation device capable of maintaining the diver at the surface in a face-up position, having a manually activated inflation source independent of the breathing supply, an oral inflation device, and an exhaust valve, shall be used for SCUBA diving.

(e) Compressed gas cylinders shall:

(1) Be designed, constructed and maintained in accordance with the applicable provisions of 29 C.F.R. 1910.101 and 1910.169 through 1910.171;

(2) Be stored in a ventilated area and protected from excessive heat;

(3) Be secured from falling; and

(4) Have shut-off valves recessed into the cylinder or protected by a cap, except when in use or manifolded, or when used for SCUBA diving.

(f) Recompression/Decompression Chambers.

(1) Each recompression/decompression chamber shall be maintained in accordance with the code requirements to which it was built, or equivalent.

(2) Each recompression/decompression chamber shall be equipped with:

(A) Means to maintain the atmosphere below a level of 25 percent oxygen by volume;

(B) Mufflers on intake and exhaust lines, which shall be regularly inspected and maintained;

(D) A means for extinguishing fire, and shall be maintained to minimize sources of ignition and combustible material.

(g) Gauges and Timekeeping Devices.

(1) Gauges indicating diver depth which can be read at the dive location shall be used for all dives except SCUBA.

(2) Each depth gauge shall be deadweight tested or calibrated against a master reference gauge every six months, and when there is a discrepancy greater than two percent of full scale between any two equivalent gauges.

(3) A cylinder pressure gauge capable of being monitored by the diver shall be worn by each SCUBA diver.

(4) A timekeeping device shall be available at each dive location.

(h) Masks and Helmets.

(1) Surface-supplied air and mixed gas masks and helmets shall have:

(A) A nonreturn valve at the attachment point between helmet or mask and hose which shall close readily and positively; and

(B) An exhaust valve.

(2) Surface-supplied air masks and helmets shall have a minimum ventilation rate capability of 4.5 acmf at any depth at which they are operated or the capability of maintaining the diver’s carbon dioxide partial pressure below 0.02 ATA when the diver is producing carbon dioxide at the rate of 1.6 standard liters per minute.

(i) Oxygen Safety.

(1) Equipment used with oxygen or mixtures containing over 40 percent by volume oxygen shall be designed for oxygen service.

(2) Components (except umbilicals exposed to oxygen or mixtures containing over 40 percent by volume oxygen) shall be cleaned of flammable materials before use.

(3) Oxygen systems over 125 psig and compressed air systems over 500 psig shall have slow-opening shut-off valves.

(j) Weights and Harnesses.

(1) Except when heavy gear is worn, divers shall be equipped with a weight belt or assembly capable of quick release.

(2) Except when heavy gear is worn or in SCUBA diving, each diver shall wear a safety harness with:

(A) A positive buckling device;

(B) An attachment point for the umbilical to prevent strain on the mask or helmet; and

(C) A lifting point to distribute the pull force of the line over the diver’s body. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1166]

12.12.720 Recordkeeping requirements.

(a) Recording and Reporting. The boat owner or designated agent shall record the occurrence of any diving-related injury or illness which requires any dive team member to be hospitalized for 24 hours or more, specifying the circumstances of the incident and the extent of any injuries or illnesses.

(b) Availability of Records.

(1) Upon the request of the Director of the Shellfish Department, a shellfish monitor or any Tribal Law Enforcement Officer, the boat owner or designated agent shall make available for inspection and copying any record or document required by this Code.

(2) Records and documents required by this Code shall be provided upon request to dive team members and designated representatives. Safe practices manuals, depth-time profiles, recording of dives, decompression procedure assessment evaluations, and records of hospitalizations shall be provided in the same manner as diver exposure records or analyses using exposure or medical records. Equipment inspections and testing records which pertain to dive team members shall also be provided upon request to dive team members or their designated representatives.

(3) Records and documents required by this Code shall be retained by the boat owner or designated agent for the following periods:

(A) Dive team member medical records (physician’s reports) – five years;

(B) Safe practices manual – current document only;

(C) Depth-time profile – until completion of the recording of dive, or until completion of decompression procedure assessment where there has been an incident of decompression sickness;

(D) Recording dive – one year, except five years where there has been an incident of decompression sickness;

(E) Decompression procedure assessment evaluations – five years;

(F) Equipment inspections and testing records – current entry or tag, or until equipment is withdrawn from service;

(G) Records of hospitalizations – five years.

(4) After the expiration of the retention period of any record required to be kept for five years, the boat owner or designated agent shall forward such records to the Puyallup Tribal Shellfish Department.

(5) In the event the boat owner ceases to do business:

(A) The successor boat owner or designated agent shall receive and retain all dive and dive team member medical records required by this Code; or

(B) If there is no successor boat owner or designated agent, dive and dive team member medical records shall be forwarded to the Puyallup Tribal Shellfish Department. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1175]

12.12.730 Violations.

In addition to the specific provisions set forth in this subchapter, proceedings regarding alleged violations shall be governed by other applicable provisions of this Code including Subchapters 17 through 20, and may include proceedings for civil penalties, seizure and forfeiture of unsafe equipment and other property, and pretrial and permanent injunctive relief to enjoin compliance with the safety provisions of this subchapter. [Res. 280208 § VII (02/28/08); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1180]

Subchapter 12. Sanitation

12.12.740 Adoption of National Shellfish Sanitation Program Manual standards (NSSP).

It is the intent of the Puyallup Tribal Council to include as part of this Code the performance criteria and other satisfactory compliance provisions of the National Shellfish Sanitation Program (“NSSP”) Manual, currently in effect, or as subsequently adopted per the Settlement Agreement governing shellfish sanitation, entered May 5, 1994. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1210]

12.12.750 Shellfish meat quality standards and testing.

For beaches within the usual and accustomed shellfish areas of the Tribe not frequently tested by the Washington State Department of Health, the Tribal Shellfish Department may:

(a) Periodically test shellfish meat samples for fecal coliform bacteria to provide supportive information for water quality data;

(b) Establish a routine schedule for collection of shellfish samples for each beach; and

(c) Conduct tests to identify the chemicals present in the shellfish tissue when a toxic chemical is suspected to impact a usual and accustomed shellfish area. In the event of an imminent health hazard, the Director may implement a Tribal emergency closure. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1220]

12.12.760 Marine water quality testing.

For marine water areas within the usual and accustomed Tribal shellfish areas not frequently tested by the Washington State Department of Health where there exists some suspected knowledge of contamination, the Department shall test marine water in shellfish areas for fecal coliform bacteria according to sampling and analysis protocols under “National Shellfish Sanitation Program Manual of Operations” for commercial shellfish harvest areas. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1230]

12.12.770 Shellfish harvesting and handling.

All boats, oyster harvesters, and floats, etc., used for harvesting or transporting shellfish shall be constructed, operated, and maintained to prevent contamination or deterioration of the shellfish. When necessary, effective coverings shall be provided on harvest boats to protect shellfish from exposure to:

(a) Hot sun;

(b) Birds; and

Subchapter 13. Reporting Harvests

12.12.780 Commercial harvest reports.

(a) It is unlawful to engage in commercial harvesting of any shellfish without obtaining and accurately maintaining a daily Tribal report available from the Tribal Shellfish Department. Failure to report required information shall constitute a violation of this Code. Commercial harvesters shall report daily to the designated Tribal officer or the Tribal Shellfish Director the following information:

(1) The location of the harvest;

(2) The date and time of the harvest;

(3) The species harvested;

(4) The weight and number of each species harvested;

(5) The gear used.

(b) Each harvester shall report daily to the designated Tribal officer or the Tribal Shellfish Director the number, the weight, and species of all shellfish harvested and the specific areas harvested.

(c) Upon request, each harvester shall provide information regarding the gear and boat type used for the harvesting of the reported shellfish.

(d) The daily report shall include whether the harvester is harvesting pursuant to the Tribe’s umbrella Tribal shellstock shipper license. If the harvesting has been done under an individual Tribal shellstock shipper license, then the harvester shall provide the individual license number. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1310]

12.12.790 Subsistence and ceremonial harvest reports.

Each subsistence or ceremonial harvester shall report to a beach monitor, if available, otherwise to the Tribal Shellfish Director or designated official, within one week of the harvest, the following information:

(a) The location of the harvest;

(b) The date and time of the harvest;

(d) The weight and number of each species harvested;

(e) The gear used. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1320]

Subchapter 14. Shellfish Buyers

12.12.800 Buyer’s license.

No person shall buy shellfish caught in the exercise of Puyallup Tribal Treaty fishing rights without first having obtained a Puyallup Tribe shellfish buyer’s license from the Puyallup Tribe. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1410]

12.12.810 License application.

An applicant buyer may apply for a buyer’s license either in person or by mail. The license fee shall be determined annually by the Puyallup Tribal Shellfish Commission. No shellfish buyer’s license will be granted unless the buyer has a current shellstock shipper’s license and certification from the State of Washington Department of Health. The buyer’s license shall be valid for one year from the date of issuance and may be renewed by the Director. The Director shall have discretion to deny an application or renewal based on the best interests of the Puyallup Tribe shellfish program, considering the purposes of the Shellfish Code as set forth in PTC 12.12.010. [Res. 280208 § VIII (02/28/08); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1420]

12.12.820 Purchases by licensed shellfish buyers.

In order to retain a valid Puyallup Shellfish Buyer’s License, the buyer must do the following:

(a) Collect Tax. Collect the Tribal shellfish tax from every Tribal harvester selling shellfish to the buyer by deducting and withholding the amount of the tax from the price paid by the buyer for the purchase of commercial shellfish.

(b) Remit Tax. Remit the fish taxes collected from the Tribal harvester to the Puyallup Tribe no later than the fifth day of every month. The monies remitted by the buyer shall include all monies collected up to and through the last day of the previous month. Remittance of shellfish taxes shall be the sole responsibility of the buyer and shall not depend upon billing or accounting statements which may be furnished to buyer at the discretion of the Tribe.

(c) Interest on Unremitted Tax. Pay interest at the rate of one and one-half percent per month on the amount of shellfish taxes collected but not remitted pursuant to subsection (b) of this section.

(d) License Fee. Pay the annual buyer’s license fee, determined annually by the Shellfish Commission.

(e) Biologist Sampling. All licensed buyers shall allow the Tribal Shellfish biologists to enter upon buyer’s premises at reasonable times and upon reasonable notice to sample, segregate and gather data for fisheries management purposes. Failure to comply with this provision shall be grounds for immediate temporary revocation of buyer’s license, pending a decision by the Tribal Court.

(f) Encouragement of Nondiscrimination. All licensed buyers shall be encouraged not to discriminate or permit discrimination by any employee in the purchase of shellfish harvested in the exercise of Puyallup Tribal Treaty fishing rights except on the basis of the condition of the fish. Every best effort shall be made to serve all harvesters, given that fish buyers have a right to seek the highest quality shellfish purchase. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1430]

12.12.830 Daily reporting.

In order to ensure effective self-regulation of Treaty fishing, it is essential that all commercial shellfish sales be accurately reported. Persons buying shellfish harvested in the exercise of Puyallup Tribal Treaty fishing rights shall provide copies of all fish tickets that involve the purchase of shellfish by the buyer from Puyallup Tribal members to the Puyallup Tribal Shellfish Department on a daily basis.

(a) Fish Ticket Information. All fish tickets shall include at least the following information: date of sale, name of buyer, harvester’s Tribal I.D. number, number and species of shellfish, number of pounds, location of harvest, price paid for said shellfish, the shellfish tax collected and withheld by the buyer, and the signature of the harvester.

(b) Failure to Report. Buyer’s failure to provide the Tribe with a copy of any fish ticket referred to in subsection (a) of this section shall be a violation of this Code, and each day thereafter shall be a separate violation. Failure to provide a copy of each individual fish ticket referred to above shall also constitute a separate violation(s).

(c) Daily Pickup. At the election of the Tribal Shellfish Director, the Tribe may provide daily pickup of fish tickets from the shellfish buyer.

(d) Monetary Penalty. A monetary penalty of $100.00 shall be assessed for each violation of this section. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1440]

12.12.840 Posted list of shellfish buyers.

On or before January 1st each year, the Shellfish Commission shall post a list of commercial shellfish buyers who possess a currently valid buyer’s license. To ensure adequate notice to harvesters, the list shall be posted on the first and third floors of the Tribal Administration Building. After the list has been posted, any additions or deletions that are made to the list shall be announced on the Puyallup Shellfish Hotline. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1450]

12.12.850 Noncompliance by shellfish buyers.

If any shellfish buyer fails to comply with the provisions of Subchapter 14, the following actions shall be taken:

(a) Verbal Notice. If the shellfish staff believes that any buyer is not in compliance with Subchapter 14, they shall contact, or have Tribal Law Enforcement contact, the buyer; advise the buyer of the alleged noncompliance, and request that a satisfactory arrangement be made to bring the buyer into compliance, including the payment of any monetary penalties that have been assessed, and/or to ensure compliance in the future.

(b) Citation and License Revocation. If such an arrangement cannot be made or is not followed, Tribal Law Enforcement shall issue a citation specifying the sections of this Code which the buyer has violated.

Notwithstanding any right of appeal by buyer, once the Tribal Court has found the buyer in violation of this Code, the license of the fish buyer shall be revoked and the name of the shellfish buyer shall be removed from the posted list of approved shellfish buyers, until such time as reinstated by Court order and/or approval of the Shellfish Commission (upon reapplication and payment of back taxes and fines). [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1460]

12.12.860 Sales to unlicensed commercial buyers.

It shall be unlawful for a Tribal harvester to knowingly sell shellfish that is harvested in the exercise of Puyallup Tribal Treaty fishing rights to any shellfish buyer whose name does not appear on the posted list. It shall be unlawful for a Tribal harvester to sell shellfish to a shellfish buyer that has been removed from the list by announcement on the Puyallup Shellfish Hotline for more than 24 hours. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1470]

Subchapter 15. Shellfish Taxes

12.12.870 Tax on shellfish taken for commercial purposes.

All Tribal shellfish harvesters shall pay the Puyallup Tribe a tax on the proceeds of all sales of all shellfish caught pursuant to or in the exercise of Puyallup Treaty fishing rights. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1510]

12.12.880 Determination of tax.

The amount of the tax shall be determined by a percentage of the gross sale price of shellfish sold. The amount of the tax shall be a minimum of two percent of the gross sale price paid for the shellfish. The Tribal Council, after consultation with the Shellfish Commission, shall set by regulation the amount of the tax to be assessed each year. In the event the Tribal Council does not enact a tax resolution for a forthcoming shellfish season, the amount of the tax shall remain as imposed by the last regulation which established a tax rate. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1520]

12.12.890 Disbursement of shellfish tax revenues.

The revenues received from the taxation of shellfish sales shall be deposited in the Shellfish Enhancement Account for use by the Puyallup Tribe for shellfish management, including but not limited to salaries, sanitation testing, diver training, and shellfish enhancement projects as recommended by the Shellfish Commission and approved by the Tribal Council. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1530]

12.12.900 Responsibility for payment of tax.

The Tribally licensed shellfish buyer shall be responsible for collection and payment of the Tribal shellfish tax. The tax shall be collected at the time the shellfish is purchased by the buyer. The buyer shall report weekly any shellfish tax collected on forms provided by the Puyallup Tribal Accounting Department. The tax should be paid to the Puyallup Tribe in accordance with the provisions of PTC 12.12.820. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1540]

12.12.910 Penalty for nonpayment of shellfish tax.

Intentional nonpayment of any shellfish tax at the time due shall be a violation of this chapter and such violator may be subject to a penalty of up to $5,000. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1550]

Subchapter 16. Use of Treaty Card

12.12.920 Use of Treaty card.

The sale of all shellfish to a licensed buyer and the filling out of all fish receiving tickets (fish tickets) shall be completed using the Treaty fishing identification card. No harvester shall sell and no licensed buyer shall purchase any Treaty shellfish without using the card to imprint the individual harvester’s identification number and the Tribe’s identification number on the fish receiving ticket. Such information shall not be written in by hand. Any person violating this provision shall be subject to the penalties set forth in PTC 12.12.1270. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1610]

Subchapter 17. General Violations

12.12.930 Notice of code and regulations.

Every person who engages in any activity relating to the taking of shellfish within the jurisdiction of the Puyallup Tribe of Indians shall be deemed to have read and understood this Code and those regulations enacted by the Puyallup Tribal Council pursuant to this Code. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1710]

12.12.940 Overharvesting of individual harvesting quota.

It shall be unlawful for any person to overharvest their individual harvesting quota as determined under PTC 12.12.300. [Res. 070604E (06/07/04); prior code § 12.05.1711]

12.12.950 Unlawful assistance.

It shall be unlawful for any person to engage in harvest activity while assisted or accompanied by a nonmember. [Res. 280722 (07/28/22); Res. 180106A § VII (01/18/06); prior code § 12.05.1712]

12.12.960 Aiding and abetting.

It shall be unlawful for any person to knowingly aid or abet another person to commit an act or engage in conduct that is unlawful under this Shellfish Code. [Res. 180106A § VIII (01/18/06); prior code § 12.05.1713]

12.12.970 Closed waters.

It shall be unlawful for any person to harvest shellfish in any area unless it has been designated as open for harvesting by ordinance or regulation enacted by the Tribal Council. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1715]

12.12.980 Unlawful taking or possession of shellfish.

It shall be unlawful for any person to pursue, kill, injure, capture, take or possess any shellfish within the exterior boundaries of the Puyallup Reservation or within the usual and accustomed fishing areas secured to the Puyallup Tribe except in accordance with the provisions of this Code. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1720]

12.12.990 Use of another’s Tribal fisheries identification unlawful.

It shall be unlawful to use the permit or the Tribal fisheries identification card of another person for any purpose related to the taking or selling of shellfish. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1725]

12.12.1000 Wanton waste of shellfish.

It shall be unlawful for anyone who takes or possesses a shellfish commonly used for food to allow such shellfish to decay to such extent that it is no longer edible. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1730]

12.12.1010 Molesting shellfish.

It shall be unlawful to molest or disturb in any manner any shellfish for any purpose other than lawful harvest pursuant to this Code. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1735]

12.12.1020 Prohibited agreements.

No Tribal harvester shall hire out to any non-Indian person, company or business as a harvester or as the operator of any non-Indian owned fishing gear or equipment in order to take shellfish under authority of this title for the primary economic gain of such non-Indian, or be involved in any shared-catch or percentage-of-catch agreements with non-Indians in exchange for the use of any gear or equipment. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1740]

12.12.1030 Use of intoxicants prohibited.

No person shall exercise or assist in exercising Tribal shellfishing rights while in possession of or while under the influence of intoxicants or illegal drugs. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1745]

12.12.1040 Littering prohibited.

No person who engages in, or is on the way to or from, the exercise of Tribal shellfishing rights shall discard any object, debris, or waste upon any public or private property or waters. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1750]

12.12.1050 Explosives or chemicals prohibited.

The use of explosives, or harmful or toxic chemicals, in any form, utilized for the purpose of taking shellfish is prohibited for all fisheries. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1755]

12.12.1060 Obstructing an officer.

No person shall willfully interfere with or obstruct a Fisheries Enforcement Officer engaged in enforcement of this title or the regulations promulgated hereunder. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1760]

12.12.1070 Identification upon request.

Any person harvesting shellfish shall produce for examination his or her identification card or permit required by this Code upon demand to any Tribal, state or federal enforcement officer, Puyallup Tribal Shellfish Monitor, or employee of the Puyallup Tribal Shellfish Department. [Res. 260711 (07/26/11); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1765]

12.12.1080 Reckless boating.

No person shall operate a fishing vessel in a reckless manner. For the purpose of this section “reckless” means a gross deviation from the standard of care that a reasonable person would observe in the situation. Further, reckless boating includes speeding or other maneuvering inappropriate for conditions causing the wake of the fisher’s vessel to endanger or significantly disrupt the vessel of any nearby fishing vessel. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1770]

12.12.1090 Sale of shellfish harvested from closed area.

No person shall sell shellfish harvested from a closed area. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1775]

12.12.1100 Conformity to U.S. Coast Guard regulations.

All boats and gear used in marine shellfish harvest shall conform to applicable U.S. Coast Guard regulations. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1780]

12.12.1110 Marker buoys, rope or other gear left in harvesting areas.

No person shall leave any marker buoys, rope, net or other gear of any kind in any harvesting area after the area has been closed. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1785]

12.12.1120 Harvesting activity unduly detaining another harvester.

No person shall engage in any harvesting activity that unduly detains another harvester from being able to harvest shellfish. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1790]

Subchapter 18. Enforcement

12.12.1130 General provisions.

This Code shall be enforced by the Puyallup Tribe Law Enforcement Division and the Tribal Prosecutor. [Res. 180106A § IX (01/18/06); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1810]

12.12.1140 Notice of violation.

Any person in violation of a provision of this Code shall be issued a citation notifying him or her that he or she is summoned to appear before the Puyallup Tribal Court to respond to the violation(s) alleged in the citation. [Res. 180106A § IX (01/18/06); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1820]

12.12.1150 Service of citation.

In the event a Law Enforcement Officer attempts to issue a citation at the time of the violation and the person refuses to sign or accept it, the citation shall be deemed properly served upon proof of mailing a copy of the citation to the person’s last known address. [Res. 180106A § IX (01/18/06); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1830]

12.12.1160 Civil complaint.

As an alternative to PTC 12.12.1140, a person may be charged by a civil complaint, which shall cite the provision(s) of the Code or regulation(s) alleged to have been violated. The complaint shall be filed in the Tribal Court and served in the same manner as other complaints. [Res. 180106A § IX (01/18/06); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1840]

12.12.1170 Seizure of shellfish, gear or equipment.

Upon the issuance or attempted issuance of a citation, the Law Enforcement Officer may seize all shellfish taken, killed, transported or possessed by the alleged violator. In addition, gear and equipment may be seized by the Officer; provided the Officer has reasonable grounds to believe that such gear or equipment to be seized has been used in the commission of a violation of this Code. The Officer may also obtain use of another fisher’s boat or equipment, if necessary to complete a seizure. Upon the seizure of any shellfish, gear or equipment, an Officer shall prepare a written inventory of all items taken and provide a copy of it to the alleged violator as soon as practicable. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1850]

12.12.1180 Permissible searches.

In carrying out his or her duties under this Code, a Law Enforcement Officer may search, without warrant, any gear, vehicle, vessel, tent, camper or other place or premises when he or she has reasonable grounds to believe such search will provide evidence of violations of this Code. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1860]

12.12.1190 Storage of seized gear or equipment.

All seized items other than shellfish shall be brought to a place designated by the Tribal Law Enforcement Division for storage. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1870]

12.12.1200 Seized shellfish.

All shellfish seized shall be sold at the prevailing market price and the proceeds deposited in trust in the Shellfish Enhancement Account until the case is resolved; or shall be given to the Shellfish Department for distribution to the Tribal Elders Program or to the Tribal members. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1875]

12.12.1210 Return of shellfish proceeds, gear or equipment.

Proceeds from the sale of shellfish and any seized gear or equipment shall be returned to the alleged violator upon acquittal or dismissal of related charge(s). [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1880]

12.12.1220 Forfeiture of proceeds, gear or equipment.

Upon conviction, the Court may order the seized proceeds, gear or equipment to be forfeited to the Tribe. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1885]

12.12.1230 Unclaimed shellfish proceeds, gear or equipment.

When the owner of the proceeds from seized shellfish, gear or equipment is unknown, the items may be ordered forfeited 15 days after the seizure should no owner come forward to claim them. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1890]

Subchapter 19. Penalties

12.12.1240 General provisions.

Any person found in violation of this Code or a regulation promulgated under its provisions shall be subject to withdrawal of all shellfish harvesting privileges and the imposition of a civil penalty not to exceed $5,000.

Any time the withdrawal of shellfish harvesting privileges is imposed under this chapter it shall include withdrawal of all rights to participate in the fishery, including acting as a tender, riding on a boat involved in the fishery or being present in any capacity while the harvest is being conducted. [Res. 070604D (06/07/04); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1910]

12.12.1250 Penalties for overharvesting commercial quotas.

In any fishery where individual harvesting quotas are set, any harvester convicted of overharvesting their individual harvesting quota shall be subject to the imposition of the following penalties:

(a) For a first time violation, all shellfish harvesting privileges of the violator shall be withdrawn for a period of not less than 10 calendar days nor more than 60 calendar days and the violator’s individual harvesting quota shall be reduced by double the amount of the overharvest for the following quarter.

(b) For a second violation, all shellfish harvesting privileges of the violator shall be withdrawn for not less than 60 calendar days nor more than one calendar year and the violator’s individual harvesting quota shall be reduced by triple the amount of the overharvest during the next quarter or quarters in which he is eligible to harvest.

(c) For a third violation, all shellfish harvesting privileges of the violator shall be withdrawn for not less than two calendar years and may be permanently revoked if the Court finds the violation or series of violations have jeopardized the fishery; and a fine of $5,000 shall be imposed.

(d) If the Court finds that an overharvesting violation was committed, the prosecutor may seek an order of forfeiture as to any pounds harvested by the individual while the case was pending, and the Court shall set a hearing to determine whether illegal harvest occurred during the pendency of the case and the amount of illegal harvest, allowing reasonable time for the defendant to prepare and respond. After such hearing, the Court shall order the forfeiture of any pounds illegally harvested during the pendency of the case. [Res. 180106A § X (01/18/06); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1920]

12.12.1260 Penalties for commercial harvesting in closed areas.

Any Tribal member or elder’s subsistence assistant who is convicted of harvesting in an area closed to shellfish harvesting shall be subject to withdrawal of shellfish harvesting privileges and the imposition of civil penalties as follows:

(a) For a first violation during a calendar year, all shellfish harvesting privileges of the violator shall be withdrawn for a period of not less than 10 calendar days nor more than 90 calendar days and a fine of $500.00 shall be imposed.

(b) For a second violation during a calendar year, all shellfish privileges of the violator shall be withdrawn for not less than 90 calendar days nor more than one full year, and a fine of $2,500 shall be imposed.

(c) For a third violation during a calendar year, or for a flagrant violation of this chapter, all shellfish privileges of the violator shall be withdrawn for a three-year period, and a fine of $5,000 shall be imposed. A flagrant violation is one which results in severe personal injury, property damage or damage to the shellfish resource.

In addition, all gear, equipment, and shellfish proceeds seized by Law Enforcement Officers as evidence of the violations shall be forfeited to the Tribe. If found not guilty, all seized property shall be returned to the person whose property was seized. [Res. 280722 (07/28/22); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1930]

12.12.1270 Penalties for other violations.

The following penalties shall be imposed for a person found guilty of a violation other than commercial harvesting in closed areas or overharvest of commercial quotas:

(a) The first violation shall be punished by a fine of not more than $500.00.

(b) The second violation shall be punished by a fine of not more than $2,500.

(c) A third violation shall be punished by a fine of not more than $5,000 for each violation. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1940]

12.12.1280 Penalties for subsistence shellfish harvesting violations.

Any Tribal member or elder’s subsistence assistant who violates any provision of this Code relating to subsistence harvest may be subject to the following penalties:

(a) For a first violation during a calendar year, the shellfish harvesting privileges may be withdrawn for a period of not less than seven calendar days and not more than 14 calendar days.

(b) For a second violation during a calendar year, the shellfish harvesting privileges may be withdrawn for a period of not less than 14 calendar days and not more than 30 calendar days.

(c) For a third violation during a calendar year, the shellfish harvesting privileges may be withdrawn for not less than 30 calendar days and not more than one full year. [Res. 280722 (07/28/22); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1950]

12.12.1290 Suspension of civil sanctions imposed – Limitations.

(a) The Court, in its discretion, may suspend all or part of any fines imposed under this Code, upon the performance of community service imposed upon the violator.

(b) Any withdrawal of harvesting privileges imposed under this Code may be suspended upon the completion of conditions the Court imposes if the Court is convinced, by evidence presented, that there are mitigating circumstances which make the withdrawal of fishing privileges unjust. If the Court is so convinced, the Court may impose a lesser number of harvesting days lost, or may waive the withdrawal of harvesting privileges altogether.

(c) The authority to suspend sanctions granted in subsections (a) and (b) of this section shall not apply to violations of the safety, medical or alcohol and drug safety provisions of this Code, even if mitigating circumstances are present, or community service has been imposed, because of the paramount and overriding safety goals of those provisions. No deferral of any kind is authorized except under the limited circumstances and conditions as strictly set forth in PTC 12.12.620(f)(12). [Res. 280208 § IX (02/28/08); Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1960]

12.12.1300 Violation of an order – Criminal penalty.

Any person who violates a Tribal Court order issued pursuant to this Code is subject to the penalties prescribed under the criminal contempt provision of the Puyallup Tribal Criminal Code (PTC 5.12.1330). [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1970]

12.12.1310 Head of household to be strictly liable for juvenile actions.

Every head of a household shall be strictly liable for the harvesting activities of the members of that household under the age of 16 years. The head of household shall be cited as a co-defendant and subject to the same penalties for any violation of this title committed by any member of that household under the age of 16. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.1980]

Subchapter 20. Miscellaneous Provisions

12.12.1320 Reserved rights.

The provisions of this Code shall not be construed as a limitation upon any Tribal rights possessed by the Puyallup Tribe but not referred to herein, nor as a description of the full extent of reserved rights, territory or resources secured to Puyallup Indians as retained by the Medicine Creek Treaty. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.2010]

12.12.1330 Sovereignty – Review of permit denial.

Nothing in this chapter shall be construed as a waiver of the sovereign immunity of the Puyallup Tribe or any of its subordinate boards, bodies, officers or employees; provided, however, that an individual aggrieved by a permit denial by the Director or the Director’s designee may seek review of such denial by filing a petition for review with the Tribal Court within 20 days of the denial. Upon the filing of a timely petition, the Court shall conduct a hearing to review the denial, after reasonable notice to the Tribal Prosecutor, who shall represent the Tribe. The Court shall reverse or modify the denial if it finds that the denial was contrary to law, arbitrary and capricious, or an abuse of discretion. The sole issue in the proceeding shall be whether to reverse or modify the denial, and the Tribal Court shall not have jurisdiction to award money damages, attorney fees, costs or injunctive relief to any party. Any party aggrieved by the decision of the Tribal Court may appeal to the Tribal Court of Appeals. The decision of the Tribal Court shall not be stayed pending the appeal. [Res. 280208 § X (02/28/08); Res. 180106A § XI (01/18/06); prior code § 12.05.2011]

12.12.1340 Not subject to Administrative Procedure Act.

The Puyallup Tribal Administrative Procedure Act (Chapter 2.08 PTC) is applicable to those titles to which the Puyallup Tribal Council has made the Act applicable through formal resolution. See PTC 2.08.270. The Puyallup Tribal Council has never adopted a resolution making the Administrative Procedure Act applicable to the Shellfish Code. Therefore, the Administrative Procedure Act has never been applicable to the Shellfish Code. [Res. 280208 § XI (02/28/08); prior code § 12.05.2012]

12.12.1350 Severability.

If any provision of this Code or the application of it to any person or circumstances is held invalid, it shall be given effect without the invalid provision or application and, to this end, the provisions, sections, and subsections herein are declared to be severable. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.2020]

12.12.1360 Repeal of prior enactments.

All provisions of any Tribal ordinance, resolution or regulation previously enacted by the Puyallup Tribal Council which are inconsistent with this Code or contradictory with its provisions are hereby repealed. [Res. 280202 (02/28/02); Res. 040494 (10/21/94); prior code § 12.05.2030]

12.12.1370 Effective date.

The subject matter of this Shellfish Code is not of the type enumerated in the Constitution of the Puyallup Tribe as requiring approval by the Secretary of the Interior. Thus, the effective dates of this chapter and its amendments are the respective dates of enactment by the Puyallup Tribal Council. [Res. 180106A § XII (01/18/06); prior code § 12.05.2031]