WSR 99-19-167




[ Filed September 22, 1999, 11:02 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-15-068.

Title of Rule: Commercial fishing rules.

Purpose: Crab gear limitation.

Statutory Authority for Adoption: RCW 75.30.480, 75.08.080.

Statute Being Implemented: RCW 75.30.480.

Summary: Limits coastal crab gear.

Reasons Supporting Proposal: The crab fishery is overcapitalized, and the available surplus is taken to rapidly. Reduction in the harvest rate will ensure stability and allow better monitoring to review the catch per unit effort, providing for better management.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, 902-2325; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, 902-2927.

Name of Proponent: Washington State 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: The department is proposing rules to achieve an even-flow harvest of coastal crab, as mandated by the legislature in RCW 75.30.480. This harvest rate, by lengthening the time period of the coastal crab fishery, provides stability in the fishery. The maximum pot size is standardized to achieve parity between harvesters, while the number of pots is reduced to a maximum of 500 per vessel for December 1999, and then tiered to the catch level made during the 1996 through 1998 seasons. An appeal process is provided for.

Proposal Changes the Following Existing Rules: Sets maximum crab pot size for the coastal fishery.

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: Maximum crab pot size of thirteen cubic feet.

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 Business, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: None. Standard crab pot size is less than the proposed maximum, so no gear loss anticipated.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? All fishers (businesses) will have a potential for a reduction in overall gear usage, which may affect short-term revenue. This will, however, be offset by a longer fishery, which will offer additional revenue opportunities. These rules will reduce the harvest rate by out-of-state fishers, who have been unregulated to date. This should provide additional fishing opportunity for Washington state fishers, as well as a better and closer market, unavailable to out-of-state fishers who do not have landing permits. Overall, it appears that there will be no loss of revenue.

5. Cost of Compliance for the 10% of Businesses That Are the Largest Businesses Required to Comply with the Proposed Rules Using One of More of the Following as a Basis for Comparing Costs:

a. Cost per employee - None.

b. Cost per hour of labor - NA.

c. Cost per one hundred dollars of sales - NA.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing so: No steps taken as no anticipated costs.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: This rule was developed with the industry.

8. A List of Industries That Will Be Required to Comply with the Rule: Nontreaty coastal crab fishers.

A copy of the statement may be obtained by writing to Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98504-1091, phone (360) 902-2930, fax (360) 902-2944.

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

Hearing Location: Room 175A, NRB Building, 1111 Washington Street, Olympia, on October 26, 1999, at 2:00 p.m.

Assistance for Persons with Disabilities: Contact Jackie Hursey by October 11, 1999, TDD (360) 902-2207 or (360) 902-2861.

Submit Written Comments to: Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501, fax (360) 902-2944, by October 25, 1999.

Date of Intended Adoption: October 26, 1999.

September 22, 1999

Evan Jacoby

Rules Coordinator


AMENDATORY SECTION(Amending Order 98-185, filed 9/4/98, effective 10/5/98)

WAC 220-52-040
Commercial crab fishery--Lawful and unlawful gear, methods, and other unlawful acts.

(1) Net fishing boats shall not have crab aboard. It is unlawful for any vessel geared or equipped with commercial net fishing gear to have aboard any quantity of crab while it is fishing with the net gear or when it has other food fish or shellfish aboard for commercial purposes.

(2) Area must be open to commercial crabbing. Unless otherwise provided, it is unlawful to set, maintain, or operate any baited or unbaited shellfish pots or ring nets for taking crabs for commercial purposes in any area or at any time when the location is not opened for taking crabs for commercial purposes by permanent rule or emergency rule of the department: Provided, That following the close of a commercial crab season, permission may be granted by the director or his or her designee on a case-by-case basis for crab fishers to recover shellfish pots that were irretrievable due to extreme weather conditions at the end of the lawful opening.  Crab fishers must notify and apply to department enforcement for such permission within twenty-four hours prior to the close of season.

(3) Crabs must be male and 6-1/4 inches. It is unlawful for any person acting for commercial purposes to take, possess, deliver, or otherwise control:

(a) Any female Dungeness crabs; or

(b) Any male Dungeness crabs measuring less than 6-1/4 inches, caliper measurement, across the back immediately in front of the tips.

(4) Each person and each Puget Sound license limited to 100 pots. It is unlawful for any person to take or fish for crab for commercial purposes in the Puget Sound licensing district using, operating, or controlling any more than an aggregate total of 100 shellfish pots or ring nets. This limit shall apply to each license. However, this shall not preclude a person holding two Puget Sound crab licenses from designating and using the licenses from one vessel as authorized by RCW 75.28.048(4).

(5) Dungeness Bay Area Limit of 20 pots. No person, nor any group of persons using the same vessel, may take or fish for crabs for commercial purposes by setting, using, operating, or controlling more than 20 shellfish pots and/or ring nets within the waters of Dungeness Bay lying west of a line projected from the new Dungeness Light southward to the outermost end of the abandoned dock at the Three Crabs Restaurant on the southern shore of Dungeness Bay.

(6) Additional area gear limits. The following Marine Fish-Shellfish Management and Catch Reporting Areas are restricted in the number of pots fished, operated, or used by a person or vessel and it is unlawful for any person to use, maintain, operate, or control pots in excess of the following limits:

(a) 10 pots in Marine Fish-Shellfish Management and Catch Reporting Area 25E.

(b) 10 pots in all waters of Marine Fish-Shellfish Management and Catch Reporting Area 25A south of a line projected true west from Travis Spit on Miller Peninsula.

(c) 30 pots in Marine Fish-Shellfish Management and Catch Reporting Area 25A west of a line from the new Dungeness Light to the mouth of Cooper Creek.

(7) Groundline gear is unlawful. No crab pot or ring net may be attached or connected to other crab pot or ring net by a common groundline or any other means that connects crab pots together.

(8) Puget Sound crab pots must be tagged. In Puget Sound it is unlawful to place in the water, pull from the water, possess on the water, or transport on the water any crab pot without a pot tag that meets the requirements of WAC 220-52-043.

(9) Puget Sound - No person can possess or use gear with other person's tag. In Puget Sound no person may possess, use, control, or operate any crab pot not bearing a tag identifying the pot as that person's, except that an alternate operator designated on a primary license may possess and operate a crab pot bearing the tag of the license holder.

(10) Cannot tamper with pot tags. No person shall remove, damage, or otherwise tamper with crab pot tags except when lawfully applying or removing tags on the person's own pots.

(11) Thirty-day period when it is unlawful to buy or land crab from ocean without crab vessel inspection. It is unlawful for any fisher or wholesale dealer or buyer to land or purchase Dungeness crab taken from Grays Harbor, Willapa Bay, Columbia River, Washington coastal or adjacent waters of the Pacific Ocean during the first thirty days following the opening of a coastal crab season from any vessel which has not been issued a Washington crab vessel inspection certificate.  The certificate will be issued to vessels made available for inspection in a Washington coastal port and properly licensed for commercial crab fishing if no Dungeness crabs are aboard.  Inspections will be performed by authorized department personnel not earlier than twelve hours prior to the opening of the coastal crab season and during the following thirty-day period.

(12) ((Grays Harbor pot limit of 200. It is unlawful for any person to take or fish for crab for commercial purposes in Grays Harbor (catch area 60B) with more than 200 shellfish pots in the aggregate. It shall be unlawful for any group of persons using the same vessel to take or fish for crab for commercial purposes in Grays Harbor with more than 200 shellfish pots.)) The following gear and fishing method limitations apply to fishing for Dungeness crab in coastal and offshore waters of the Pacific Ocean that are west of the Bonilla-Tatoosh line, south of the United States/Canada border, north of the Oregon/Washington border, and including waters of Grays Harbor, waters of Willapa Bay and the concurrent waters of the Columbia River. Persons who violate the following provisions are subject to criminal penalties under chapter 77.15 RCW.

(a) Temporary crab pot limit. No person may fish more than 500 crab pots during the period December 1 through December 31, 1999, of which no more than 200 pots may be fished in Grays Harbor.

(b) Crab pot allowance certificate required. Effective January 1, 2000, no person may fish more than the number of crab pots assigned to that person's Dungeness crab–coastal fishery license, or the equivalent license issued by the state of Oregon or California. The crab pot number allowance will be identified in a certificate. The crab pot allowance certificate must be possessed by a commercial fisher while fishing for or possessing Dungeness crab in waters covered by this rule.

(c) Setting the crab pot allowance number. The number of crab pots allowed to a licensee will be based on the documented landings of Dungeness crab taken south of the United States/Canada border, west of the Bonilla-Tatoosh line, and taken from Pacific Ocean waters and waters of coastal estuaries in the states of Washington, Oregon, and California. Documented landings may be shown only by valid Washington state shellfish receiving tickets or the equivalent documents from the states of Oregon and California that show Dungeness crab taken between December 1, 1996, and September 16, 1998, (the "qualifying period"), and such fish receiving documents must have been received by the respective states no later than October 15, 1998.

(i) Persons who landed 200,000 or more pounds during the qualifying period shall receive a 600 pot maximum limit.

(ii) Persons who landed at least 39,000 pounds but less than 200,000 pounds during the qualifying period shall receive a 500 pot maximum limit.

(iii) Persons who landed less than 39,000 pounds during the qualifying period shall receive a 300 pot maximum limit.

(d) Seeking an upgrade from 300 or 500 pot allowances. A licensee may seek an upgrade from the 300 and 500 pot allowances set in this subsection by showing all three of the following factors apply to that licensee:

(i) The licensee has documented catch records showing that the licensee made the landings required for a higher pot allowance during any biennial period between December 1st through the second September 16th following, where that biennial period occurred between December 1, 1990, and September 16, 1997;

(ii) The circumstances that prevented the licensee from achieving landings during the qualifying period were beyond the licensee's control if the licensee had used reasonable diligence to pursue crab during the qualifying period; and

(iii) The circumstances that prevented the landings during the qualifying period did not generally apply to other crab fishers. Any application for an upgrade of the pot limit assignment must be received by the department on or before December 1, 2000. A person may appeal the department's decision on the application for an upgrade pursuant to the Administrative Procedure Act.

(e) Exception for undesignated vessels during preseason soaking. After November 28, 1999, no person's crab pots may be deployed from a vessel not designated on a Dungeness crab–coastal fishery license, except that it is lawful to use a nondesignated vessel during the period November 28 through December 2 of each year if the person whose crab pots are being deployed is aboard the deploying vessel.

(f) Pot and buoy tag requirement. Effective December 1, 2000, each crab pot and crab pot buoy must be identified by a department-issued tag affixed to the crab pot and a department-issued tag affixed to the crab pot buoy line within 24 inches of the terminal buoy. All gear possessed on the water or used in the fishery must be so identified. No person may possess, use, control, fish from, or set pots or buoys that have a tag that is not assigned to that licensee, except that an alternate operator may operate such gear.

[Statutory Authority: RCW 75.08.080.  98-19-012 (Order 98-185), § 220-52-040, filed 9/4/98, effective 10/5/98; 98-05-043, § 220-52-040, filed 2/11/98, effective 3/14/98; 97-08-052 (Order 97-55), § 220-52-040, filed 3/31/97, effective 5/1/97; 94-12-009 (Order 94-23), § 220-52-040, filed 5/19/94, effective 6/19/94; 91-10-024 (Order 91-22), § 220-52-040, filed 4/23/91, effective 5/24/91; 85-01-010 (Order 84-214), § 220-52-040, filed 12/7/84; 84-08-014 (Order 84-24), § 220-52-040, filed 3/27/84; 83-01-026 (Order 82-221), § 220-52-040, filed 12/8/82; 80-13-064 (Order 80-123), § 220-52-040, filed 9/17/80; 79-02-053 (Order 79-6), § 220-52-040, filed 1/30/79; Order 77-145, § 220-52-040, filed 12/13/77; Order 76-152, § 220-52-040, filed 12/17/76; Order 76-26, § 220-52-040, filed 1:45 p.m., 4/20/76; Order 1045, § 220-52-040, filed 3/8/73; Order 807, § 220-52-040, filed 1/2/69, effective 2/1/69; subsections 1, 5, 6, from Orders 409 and 256, filed 3/1/60; subsection 2 from Orders 500 and 256, filed 3/1/60; subsection 3 from Order 528, filed 6/1/61; Order 525, filed 5/3/61; Order 507, filed 4/8/60; Orders 409 and 256, filed 3/1/60; subsection 4 from Order 528, filed 6/1/61; Order 525, filed 5/3/61; Orders 409 and 256, filed 3/1/60; subsection 7 from Orders 414 and 256, filed 3/1/60; subsection 8 from Orders 410 and 256, filed 3/1/60; subsection 9 from Order 409, filed 9/14/56.]

AMENDATORY SECTION(Amending Order 98-185, filed 9/4/98, effective 10/5/98)

WAC 220-52-043
Commercial crab fishery--Additional gear and license use requirements.

(1) Commercial gear limited to pots and ring nets. It shall be unlawful to take or fish for crabs for commercial purposes except with shellfish pots and ring nets.

(2) Commercial gear escape rings and ports defined. 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 4-1/4 inches inside diameter.

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

(3) Puget Sound commercial gear tagging requirements.

In Puget Sound, all crab pots must have a durable, non-biodegradable tag permanently and legibly marked with the primary license owner's name or license number, and telephone number securely attached to the pot. If the tag information is illegible, or if the tag is lost for any reason, the pot is not in compliance with law.

(4) Puget Sound - Description of lawful buoys. All buoys attached to 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.  It is unlawful to use bleach or antifreeze bottles or any other container as a float.  All buoys fished under a single license must be marked in a uniform manner using one buoy brand number registered by the license holder with the department and be of identical color or color combinations. No buoys attached to commercial crab gear in Puget Sound may be both red and white in color unless a minimum of thirty percent of the surface of each buoy is also prominently marked with an additional color or colors other than red or white, as the red and white colors are reserved for personal use crab gear as described in WAC 220-56-320 (1)(c).

(5) Commercial crab license requirements. In addition to, and separate from, all requirements in this chapter that govern the time, area, gear, and method for crab fishing, landing, possession, or delivery of crabs, no commercial crab fishing is allowed except when properly licensed. A person may take, fish for, land, or deliver crabs for commercial purposes in Washington or coastal waters only when the person has the license required by statute, or when the person is a properly designated alternative operator to a valid license. For Puget Sound, a person must have a "Dungeness crab - Puget Sound" fishery license provided by RCW 75.28.130. For coastal waters, such person must have a "Dungeness crab - Coastal" fishery license provided by RCW 75.28.130. To use ring nets instead of or in addition to pots, then the licensee must also have the "Crab ring net - Puget Sound" or "Crab ring net - non-Puget Sound" license in RCW 75.28.130. Qualifications for the limited entry licenses, requirements for designating vessels, and use of alternate operators is provided by and controlled by chapters 75.28 and 75.30 RCW.

(6) Maximum size for coastal crab pots. Effective December 1, 1999, the maximum volume of a crab pot used to fish for or take Dungeness crab from the waters provided for in WAC 220-52-040(12) is thirteen cubic feet.

(7) Incidental catch may not be retained. It is unlawful to retain salmon, food fish, or any shellfish other than octopus that is taken incidental to any crab fishing.

[Statutory Authority: RCW 75.08.080.  98-19-012 (Order 98-185), § 220-52-043, filed 9/4/98, effective 10/5/98; 94-12-009 (Order 94-23), § 220-52-043, filed 5/19/94, effective 6/19/94; 93-15-051, § 220-52-043, filed 7/14/93, effective 8/14/93; 84-08-014 (Order 84-24), § 220-52-043, filed 3/27/84; 79-02-053 (Order 79-6), § 220-52-043, filed 1/30/79; Order 77-145, § 220-52-043, filed 12/13/77; Order 1179, § 220-52-043, filed 11/19/74; Order 807, § 220-52-043, filed 1/2/69, effective 2/1/69.  Formerly WAC 220-52-040(1).]

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