WSR 98-21-091

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[Filed October 21, 1998, 11:53 a.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 98-17-086.

Title of Rule: Commercial fishing rules, re: Ocean spot shrimp--Declaration of emerging commercial fishery--Provide rules and criteria for participation.

Purpose: To declare the ocean spot shrimp fishery as an emerging commercial fishery as provided under the Emerging Commercial Fishery Act. The existing fishery is growing rapidly in both landings and number of vessels participating. In addition gear conflicts on the shrimping grounds are occurring. The fishery needs to have limited participation to prevent overcapitalization, gear conflict, and overfishing on a resource whose sustainability is unknown.

Statutory Authority for Adoption: RCW 75.08.080 and 75.30.220.

Statute Being Implemented: RCW 75.08.080 and 75.30.220.

Summary: Ocean spot shrimp fishery rules will limit participation with rules for gear, allowable species, initial participant qualification, and requirements for continuing participation.

Reasons Supporting Proposal: The fishery is rapidly expanding, both in pounds landed and number of vessels participating creating a risk for the sustainability for the resource which is unknown, creating gear conflicts on the fishing grounds and increasing the risk of further overcapitalization in the fishing industry.

Name of Agency Personnel Responsible for Drafting: Morris Barker, 1111 Washington Street, Olympia, WA, (360) 902-2826; Implementation: Bruce Crawford, 1111 Washington Street, Olympia, WA, (360) 902-2325; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, (360) 902-2373.

Name of Proponent: Washington Department of Fish and Wildlife, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 220-88B-010 Emerging commercial fishery--Purpose, describes the purpose and scope of chapter 220-88B WAC with regard to establishing the coastal spot shrimp pot and trawl fisheries as emerging commercial fisheries (ECF). Initiation of the ECF process became necessary when the level of participation and interest in the fishery began to rapidly accelerate. The purpose of emerging commercial fishery legislation enacted in 1993 was to enable the Washington Department of Fish and Wildlife to place restrictions on participation in developing fisheries in order to conserve the resource, prevent overharvest, and habitat damage. Little is known about the coastal spot shrimp resource with regard to its distribution, abundance, and sustainability. After a fishery evaluation period of up to five years, the department must submit a report to the legislature with our recommendations for the future structure and management of this fishery. Anticipated effects will be to limit vessel participation, reduce harvest levels commensurate with stock production capability, provide interim harvest equity between gear types, reduce fishing conflicts on the grounds, and prevent overcapitalization by fishers making investments in boats, equipment, and gear beyond the level of harvest that the resource can support.

WAC 220-88B-020 Designation of the coastal spot shrimp pot fishery and coastal shrimp trawl fisheries as emerging commercial fisheries, designates these two fisheries as emerging commercial fisheries in accordance with governing RCWs and makes it unlawful to participate in these fisheries unless fishers have been issued appropriate licenses and permits. Describes the licenses that may no longer be used to participate in these two fisheries. Anticipated effect is to limit participation in the fishery to those that qualify according to the criteria in WAC 220-88B-030.

WAC 220-88B-030 Emerging commercial fishery--Eligibility for coastal fishery permits--Terms and conditions, specifies qualification criteria for permit eligibility in terms of the qualifying time period and amount of spot shrimp landed during the qualifying period for pot gear and trawl gear. Describes procedures for permit administration. The effect is to limit participation to four trawl and nine pot vessels which will qualify for permits under the proposed criteria that were developed in concert with an Industry Advisory Board.

WAC 220-88B-040 Coastal spot shrimp experimental fishery--Season and gear, designates seasons and gear restrictions for shrimp pot gear; sets maximum gear allowed per permit; pot construction and identification requirements; and allowable by-catch of other species. The purpose of this rule is to describe a fishing season; provide for mesh size that reduces harvest of undersize spot shrimp; limit pot sizes and amount of pots fished to create a level playing field among the participants; provide for the ready identification of gear to reduce gear conflicts on the fishing grounds; and, limit the by-catch to protect other resources which are fully subscribed in other fisheries. The anticipated effect is to reduce the level of effort in the fishery; provide equity of opportunity within the gear type; promote benign gear and fishing practices; reduce gear conflict on the fishing grounds; and reduce the trend toward overcapitalization of fishing power in this segment of the industry.

WAC 220-88B-050 Coastal spot shrimp trawl experimental fishery--Season and gear--Trawl gear restriction--Species restriction, designates fishing season and trawl gear restrictions: Includes fish excluder devices, net construction, mesh size requirements and specifications regarding foot-rope protectors and tickler chains. Specifies allowable by-catch. The purpose of this rule is to describe a fishing season; provide for mesh size that reduces harvest of undersize spot shrimp and other shrimp species; requires a device that reduces by-catch of fish; limits gear construction in a manner that removes incentives to trawl for spot shrimp in rougher bottom habitat; and limits the by-catch to protect other resources which are fully subscribed in other fisheries. The anticipated effect is to reduce the level of effort in the fishery; provide equity of opportunity within the gear type; promote benign gear and fishing practices; reduce gear conflict on the fishing grounds; and reduce the trend toward overcapitalization of fishing power in this segment of the industry.

WAC 220-52-050 Shrimp fisheries--Coastal waters, designates new by-catch limitations for spot shrimp as taken in the ocean pink shrimp fishery and allows the incidental take of shrimp species other than ocean spot shrimp and ocean pink shrimp only in directed shrimp fisheries for ocean pink and ocean spot shrimp. The purpose of this regulation is to prevent other shrimp fisheries from targeting on spot shrimp as "incidental take" in legimate ocean pink shrimp fisheries or preventing the pursuit of spot shrimp under the guise of fishing for a lesser known shrimp species. The effect of the regulation will be to channel the bulk of the ocean spot shrimp harvest to the emerging commercial fishery gears designated in this rule-making process.

Proposal Changes the Following Existing Rules: See Small Business Economic Impact Statement below.

A small business economic impact statement has been prepared under chapter 19.85 RCW.



Small Business Economic Impact Statement

1. Description of the Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule: The regulation package implements new requirements that: (1) Limits the number of vessels participating in the ocean spot shrimp fishery in accordance with emerging commercial fishery legislation (RCW 75.30.220, [75.30].230, and [75.30].240, and (2) places restrictions on fishing gear that is needed to conserve the resource, and (3) places an incidental catch restriction for shrimp species other than ocean pink shrimp on ocean pink shrimp trawl fishers. Fishers have been required to keep and report fishing logbook information to the Washington Department of Fish and Wildlife for many years. No additional reporting or recordkeeping is required.

2. Kinds of Professional Services that a Small Business is Likely to Need in Order to Comply with such Requirements: None.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: In accordance with RCW 75.28.130, each fisher qualifying for a permit must obtain an emerging commercial fishery license. The fee for this license is $185 for Washington residents. There is no fee charged for the permit issued in accordance with RCW 75.30.220.

The minimum mesh size rule for pot gear is proposed to take effect in 2001. This provides a two-year phase-in period. It is anticipated that most pots will be rewebbed to meet this requirement before 2001 as a part of routine gear replacement and maintenance. It is difficult to predict the number of pots that will need to be rewebbed by 2001. The approximate cost of rewebbing one pot is $20. Fishers employ about 300 pots each. In the worst case, it would cost a fisher about $6,000 for rewebbing if no gear maintenance were needed prior to 2001, a very unlikely scenario.

The proposed new requirements on trawl gear were developed with the cooperation and support of the affected fishers. Trawl nets normally require frequent repair and/or replacement. The rule that requires a two-inch minimum cod-end mesh size takes effect in 2001. Only one fisher could substantially be affected by this rule, the others are already modifying their gear to facilitate this change. The impact to this fisher will be approximately $4,000 to comply with the rule if the net does not require significant repair or replacement before 2001.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Several fishers that participated in the fishery for the first time after March 30, 1998, did so with full knowledge that it was very likely that emerging commercial fisheries legislation would be implemented and that they would be ineligible to participate in the fishery after January, 1999. Accordingly, these fishers will lose the opportunity to earn fishing revenue. This revenue will not result in an overall loss to general industry because the revenue source will be transferred to qualifying fishers.

5. Cost of Compliance for the Ten Percent of Businesses that are the Largest Businesses Required to Comply with the Proposed Rules Using One or More of the Following as a Basis for Comparing Costs: a. Cost per employee; b. cost per hour of labor; or c. cost per one hundred dollars of sales. Not applicable.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for not Doing so: These rules have been developed with extensive participation of the commercial fishers affected. As noted in #3 above, the minimum mesh size rule for pot gear and trawl gear allows for a phase-in period of two years and it is anticipated that most gear will be rewebbed to meet the new requirement as part of routine maintenance during the two-year phase-in period. Minor modifications to trawl gear will be needed to meet the new requirements, but most trawlers have already made the modifications. Fishers support these requirements.

7. A Description of How the Agency will Involve Small Businesses in the Development of the Rule: Implementation of emerging commercial fisheries legislation required formation of an Industry Advisory Board. Seven Advisory Board meetings were held. Notice of these meetings were mailed to everyone who had expressed interest in the fishery; each person was provided with copies of the draft and final draft of regulations for review and comment. The Washington Department of Fish and Wildlife intends to continue to involve industry representatives in the fishery management process as the fishery continues to develop.

8. A List of Industries that will be Required to Comply with the Rule: These rules will apply only to coastal commercial spot shrimp and ocean pink shrimp fishers that fall under the jurisdiction of the state of Washington.



A copy of the statement may be obtained by writing to Morris Barker, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2826, fax (360) 902-2944.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Not hydraulic rules.

Hearing Location: DoubleTree Hotel, Seattle Airport, 18740 Pacific Highway South, Seattle, WA, on December 4-5, 1998, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Robin Ayers by November 16, 1998, TDD (360) 902-2295, or (360) 902-2933.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA, fax (360) 902-2940, by December 3, 1998.

Date of Intended Adoption: December 5, 1998.

October 21, 1998

Evan Jacoby

Rules Coordinator

OTS-2617.2

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)



WAC 220-52-050  Shrimp fishery--Coastal waters. It is unlawful to fish for ((or)), possess or deliver shrimp taken for commercial purposes from ((coastal)) Washington territorial waters west of the Bonilla-Tatoosh line or waters of the Exclusive Economic Zone except as provided for in this section:

(((1) Trawl gear:

(a) Season - Open to trawl fishing April 1 through October 31 of each year.

(b) Gear restrictions - The following gear is prohibited:

(i) Shrimp trawl gear having a mesh size greater than two inches in the intermediate or codend. It is lawful to have mesh larger than two inches in the wings or body of the trawl.

(ii) It is unlawful for any fisherman to be in possession of any gear having mesh size greater than two inches in the intermediate or codend while any shrimp are aboard the vessel.

(c) Species restriction - It is unlawful to retain ocean pink shrimp taken within the territorial boundaries of the state.

(d) Licensing:

(i) A shrimp trawl--non-Puget Sound fishery license is a license required to operate the gear provided for in this section, and allows the operator to retain shrimp other than ocean pink shrimp.

(ii) An ocean pink shrimp delivery license is a license required to operate the gear provided for in this section, and allows the operator to retain shrimp taken in offshore waters.

(2) Shellfish pot gear:

(a) Season - Open to shellfish pot gear fishing the entire year.

(b) Gear restrictions - No mesh restriction.

(c) Species restriction - It is unlawful to retain ocean pink shrimp taken within the territorial boundaries of the state.

(d) Licensing:

(i) A shellfish pot fishery license is a license required to operate the gear provided for in this section, and allows the operator to retain shrimp other than ocean pink shrimp.

(ii) An ocean pink shrimp delivery license is a license required to operate the gear provided for in this section, and allows the operator to retain shrimp taken in offshore waters.

(3) Minimum number of shrimp per pound:

The count must average no more than 160 shrimp per pound for a minimum of two samples increasing at a rate of one sample per one thousand pounds landed or in possession up to a maximum requirement of twenty samples. Such samples shall consist of at least one pound each of whole unbroken shrimp taken at random from throughout the individual load landed or in possession. This subsection applies only to loads of 3,000 pounds of shrimp or more.

(4) Incidental catch:

(a) It is unlawful to take salmon incidental to any shrimp fishery.

(b) It is unlawful to retain more than 1,500 pounds per fishing day of any bottomfish species taken incidental to a shrimp trawl fishery in which ocean pink shrimp comprise more than one-half of the volume of shrimp aboard. It is unlawful to retain more than 1,000 pounds per fishing day of any bottomfish species taken incidental to a shrimp trawl fishery in which spot prawns comprise more than one-half of the volume of shrimp aboard. If a species or species complex trip limit established under WAC 220-44-050 is less than 1,500 pounds or 1,000 pounds respectively, it is unlawful to land in excess of that trip limit.

(c) It is unlawful to retain any species of shellfish taken incidental to any lawful shrimp fishery, except that it is lawful to retain octopus and squid.)) (1) Ocean pink shrimp fishery:

(a) The open season for trawl gear is April 1 through October 31 of each year.

(b) The following gear is prohibited: Trawl gear having a net mesh size greater than two inches in the intermediate or codend, except for net mesh used in fish excluder devices. It is lawful to have net mesh larger than two inches in the wings or body of the trawl.

(c) Minimum number of shrimp per pound: The count per pound must average no more than 160 shrimp per pound for a minimum of two samples increasing at a rate of one sample per one thousand pounds landed or in possession up to a maximum requirement of twenty samples. Such samples shall consists of at least one pound of each of whole unbroken shrimp taken at random from throughout the individual load landed or in possession. This shall apply only to loads of 3,000 pounds of shrimp or more.

(d) Incidental catch-finfish: It is unlawful to take salmon incidental to any shrimp fishery. It is unlawful to retain any bottomfish species taken incidental to shrimp trawl fishery except as provided for in WAC 220-44-050.

(e) Incidental catch-shellfish:

(i) It is unlawful to retain any species of shellfish except that it is lawful to retain up to 50 pounds round weight of other shrimp species taken incidentally in the ocean pink shrimp fishery, or octopus or squid.

(ii) It is unlawful to retain ocean pink shrimp taken within the territorial boundaries of the state.

(f) An ocean pink shrimp delivery license is the license required to operate the gear provided for in this section, and allows the operator to retain shrimp taken in offshore waters.

(2) Ocean spot shrimp fishery: The spot shrimp fishery shall be governed by chapter 220-88B WAC.

(3) Fisheries for shrimp species other than ocean pink shrimp or ocean spot shrimp: Species other than ocean pink shrimp and ocean spot shrimp may only be taken incidentally to the ocean pink shrimp and ocean spot shrimp fisheries.



[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-52-050, filed 5/19/94, effective 6/19/94; 93-15-051, 220-52-050, filed 7/14/93, effective 8/14/93; 87-23-006 (Order 87-187), 220-52-050, filed 11/6/87; 84-08-014 (Order 84-24), 220-52-050, filed 3/27/84; 83-04-025 (Order 83-04), 220-52-050, filed 1/27/83; 82-03-045 (Order 82-6), 220-52-050, filed 1/19/82; 80-13-064 (Order 80-123), 220-52-050, filed 9/17/80; 79-02-053 (Order 79-6), 220-52-050, filed 1/30/79; Order 76-152, 220-52-050, filed 12/17/76; Order 76-26, 220-52-050, filed 1:45 p.m., 4/20/76; Order 1242, 220-52-050, filed 8/7/75, effective 9/16/75; Order 1179, 220-52-050, filed 11/19/74; Order 1112, 220-52-050, filed 4/15/74; Order 945, 220-52-050, filed 8/16/71; Order 807, 220-52-050, filed 1/2/69, effective 2/1/69; subsections 1, 5, 6 from Orders 414 and 256, filed 3/1/60; subsection 2 from Orders 420 and 256, filed 3/1/60; subsection 3 from Order 525, filed 5/3/61; Orders 414 and 256, filed 3/1/60; subsection 7 from Order 525, filed 5/3/61.]

OTS-2621.2

NEW SECTION



WAC 220-88B-010  Emerging commercial fishery--Coastal--Purpose. The purpose of this chapter is to establish the coastal spot shrimp pot and coastal shrimp pot trawl as emerging commercial fisheries, specify the qualification for obtaining experimental fishery permits to participate in these fisheries, limit the transferability of fishery permits, and to set time, place, and manner for participation in these fisheries.



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NEW SECTION



WAC 220-88B-020  Designation of the coastal spot shrimp pot fishery and coastal shrimp trawl as emerging commercial fisheries. (1) The director designates the coastal spot shrimp pot fishery as an emerging commercial fishery for which use of a vessel is required. It is unlawful to fish for, possess, or deliver spot shrimp taken for commercial purposes from Washington territorial waters west of the Bonilla-Tatoosh line or from waters of the Exclusive Economic Zone unless the owner of the vessel has a valid emerging commercial fishery license and a valid coastal spot shrimp pot experimental fishery permit.

(2) The director designates the coastal spot shrimp trawl fishery as an emerging commercial fishery for which a vessel is required. It is unlawful to fish for, possess, or deliver spot shrimp taken for commercial purposes from Washington territorial waters west of the Bonilla-Tatoosh line or from waters of the Exclusive Economic Zone unless the owner of the vessel has a valid emerging commercial fishery license and a valid coastal spot shrimp trawl experimental fishery permit.

(3) After January 1, 1999, the following licenses may not be used to fish for, possess, or deliver spot shrimp taken in Washington territorial waters west of the Bonilla-Tatoosh line or waters of the Exclusive Economic Zone: Shellfish pot fishery license, nonlimited entry delivery license, salmon troll delivery license, salmon delivery license, crab pot fishery license, Dungeness crab--coastal fishery license.



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NEW SECTION



WAC 220-88B-030  Emerging commercial fishery--Eligibility for coastal experimental fishery permits--Terms and conditions of use--Renewal. (1) A 1999 coastal spot shrimp pot experimental fishery permit will be issued to a natural person who is the owner of a vessel that can prove by means of valid Washington fish receiving tickets that at least 1,000 round pounds of spot shrimp were taken from waters of the Pacific Ocean between 46.15.00' and 48.28.00" N. latitude with shellfish pot gear and delivered from that vessel during the period January 1, 1992, through March 30, 1998. In order for a fish receiving ticket to be valid it must have been received by the department no later than April 15, 1998.

(2) A 1999 coastal spot shrimp trawl experimental fishery permit will be issued to a natural person who is the owner of a vessel that can prove by means of valid Washington fish receiving tickets that at least 10,000 round pounds of spot shrimp were taken from waters of the Pacific Ocean between 46.15.00' and 48.28.00" N. latitude with trawl gear and delivered from that vessel during the period from January 1, 1992, through March 30, 1998. In order for a fish receiving ticket to be valid it must have been received by the department no later than April 15, 1998.

(3) For purposes of this section, landings of spot shrimp reported as "tails" on fish receiving tickets will be converted to round pounds by multiplying the reported weight of tails by two.

(4) In the event the owner has replaced a vessel that was used during the qualifying period, the landings from the original and replacement vessels may be combined for purposes of achieving the minimum landing requirement during the qualifying period.

(5) No individual may hold more than one Washington coastal spot shrimp experimental fishery permit.

(6) Coastal spot shrimp experimental fishery permits are not transferable. Only the vessel designated in the emerging commercial fishery license and coastal spot shrimp experimental fishery permit may be used to fish for or deliver spot shrimp.

(7) After 1999, a coastal spot shrimp pot experimental fishery permit or a coastal spot shrimp trawl experimental fishery permit will be issued only to the person who:

(a) Held such a permit the previous year; and

(b) Beginning January 1, 2001, can demonstrate by valid Washington fish receiving tickets that at least 1,000 cumulative round weight pounds of spot shrimp taken from waters of the Pacific Ocean adjacent to the state of Washington were landed from the person's vessel during the previous two calendar years.

(8) The director may convert coastal spot shrimp experimental trawl fishery permits to coastal spot shrimp experimental pot fishery permits.

(9) Coastal spot shrimp experimental fishery permits may be revoked by the director for failure to comply with conditions specified in the permits or violations of other fishing regulations. A coastal spot shrimp experimental fishery permit shall be revoked if the emerging commercial fishery license is revoked or future fishing privileges of the licensee are suspended.

(10) The director may issue a coastal spot shrimp experimental fishery permit to another person if a permittee fails to make the requisite landings, if the person's experimental coastal spot shrimp experimental fishery permit is revoked, or if no application for an emerging commercial fishery license is received by March 31st of each year. The total number of permits issued, including replacement permits, shall not exceed the number of permits issued in 1999. Selection of persons to receive replacement permits shall be by gear type, and the replacement permit will be offered first to the person who made the largest total coastal spot shrimp landing in each gear type during the qualifying period and then in descending order to persons who made landings in that gear type. If no persons with coastal spot shrimp landings wish to participate, the director may offer a replacement permit by random drawing.

(11) Coastal spot shrimp experimental fishery permits are only valid for the year issued and expire on December 31st of the year issued with the expiration of the emerging commercial fishery license.



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NEW SECTION



WAC 220-88B-040  Coastal spot shrimp pot experimental fishery--Season and gear--Species restriction. It is unlawful to fish for spot shrimp for commercial purposes in coastal and offshore waters using shellfish pot gear except as provided in this section:

(1) Season - Open to shellfish pot gear the entire year.

(2) Gear restrictions:

(a) Maximum of 500 shellfish pots per permit.

(b) Effective January 1, 2001, pot size is limited to a maximum 153 inch bottom perimeter and a maximum 24 inch height.

(c) Effective January 1, 2001, shrimp pot gear must be constructed with net webbing or rigid mesh, and at least 50 percent of the net webbing or mesh covering the sides of the pot must easily allow passage of a seven-eighths inch diameter dowel.

(d) Pot gear is required to have an escape mechanism as provided for in WAC 220-52-035.

(e) Groundline end marker buoys must be floating and visible on the surface of the water, equipped with a pole, flag, radar reflector and operating light, and marked with the clear identification of the permittee.

(3) Incidental catch: It is unlawful to retain any species of finfish or shellfish, except that it is lawful to retain octopus, squid, and up to 50 pounds round weight of other shrimp species taken with shrimp pot gear.



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NEW SECTION



WAC 220-88B-050  Coastal spot shrimp trawl experimental fishery--Season and gear--Trawl gear restriction-pot gear restriction--Species restriction. It is unlawful to fish for spot shrimp for commercial purposes in coastal and offshore waters using trawl gear except as provided for in this section:

(1) Season - Open to trawl gear May 1 through November 30.

(2) Gear:

(a) Fish excluder devices required.

(b) Single-layered codends only, minimum mesh one and one-half inches measured between adjacent knots. Effective January 1, 2001, minimum mesh size is two inches measured between adjacent knots.

(c) Chafing gear may encircle no more than 50 percent of the circumference of the net codend and the terminal end of chafing gear may not be attached to the codend except at the corners.

(d) Trawl gear may not be rigged such that tickler chains, or any other gear drags across the bottom in front of the mouth of the net; each roller, bobbin, disc, or similar device added to the footrope of the trawl net that is intended to make contact with the sea bottom may not be less than eight inches nor more than twenty-eight inches in diameter and must roll independently and freely.

(3) Spot shrimp pot gear may not be aboard any vessel designated in the coastal spot shrimp trawl experimental fishery.

(4) Incidental catch:

(a) It is unlawful to retain more than 50 pounds round weight of other shrimp species. It is lawful to retain octopus and squid.

(b) It is unlawful to retain salmon.

(c) It is unlawful to retain any bottomfish species except as provided for in WAC 220-44-050.



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