WSR 04-01-136

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed December 18, 2003, 4:43 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-21-132.

Title of Rule: Coastal spot shrimp pot experimental fishery -- Seasons and gear -- Species restriction.

Purpose: To eliminate by-catch of finfish, and prohibit delivery of bottom fish while spot shrimp are aboard.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: Eliminates ocean spot shrimp fishers catching and delivering finfish as part of their allowable catch.

Reasons Supporting Proposal: The circumstances of the ocean ground fish management and stock health have changed significantly since the rule was first adopted. Current circumstance has change to the point where the minor catch of species under management protection are constraining major fishery industries and the conservation interests of the state of Washington and the Pacific Fishery Management Council take precedent over this impacting fishery.

Name of Agency Personnel Responsible for Drafting: Morris Barker, 1111 Washington Street, Olympia, WA, 902-2826; Implementation: Lew Atkins, 1111 Washington Street, Olympia, WA, 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, 902-2373.

Name of Proponent: 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 rule will eliminate the current allowable by-catch of finfish from the landings of ocean spot shrimp pot fishers, and the delivery of bottomfish taken while spot shrimp are aboard. The purpose is to reduce the incidental and/or target catch of fish stocks that are driving much of the Pacific Fishery Management Council (PFMC) considerations for conservation and management of coastal bottomfish stocks. The anticipated effect is to provide a greater buffer for management precision and increase the PFMC ability to rebuild stocks of fish. This rule will also help prevent setting of groundfish gear inside restricted zones.

Proposal Changes the Following Existing Rules: Deletes ability to land catch of finfish under the emerging commercial fishery license for ocean spot shrimp fishers.

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

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: No recordkeeping required. Compliance requires no landing of finfish on the underlying license, or while spot shrimp are aboard.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: No professional services required.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: There will be additional margin costs in having to make additional trips to deliver groundfish without spot shrimp being aboard.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Yes, there will be minor revenue losses due to the restriction on no landing of by-catch.

5. Cost of Compliance for the 10% 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.

There are only twelve licenses affected out of approximately 4,000 commercial fishing licenses issued - of the twelve licenses, only one to two vessels have landed finfish under the emerging commercial fishery license/permit for ocean spot shrimp by pot gear. These businesses comprise less than 0.1% of the commercial fishing industry. These same vessels may land finfish under other existing licenses.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The agency has met with the industry to discuss the change which included possible alternatives to address the landing need for individual fishers.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The agency has worked with the coastal spot shrimp fishing industry to develop this regulation and explained the need for the change. The industry will be able to participate further under the auspices of the Fish and Wildlife Commission public hearing process.

8. A List of Industries That Will Be Required to Comply with the Rule: Those participants in the ocean spot shrimp pot fishery.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, (360) 902-2155.

RCW 34.05.328 does not apply to this rule adoption. Not hydraulic rules.

Hearing Location: Natural Resources Building, 1111 Washington Street, Olympia, WA, on February 6-7, 2004, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Susan Yeager by January 23, 2004, TDD (360) 902-2207 or (360) 902-2267.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by January 30, 2003.

Date of Intended Adoption: February 6, 2004.

December 18, 2003

Evan Jacoby

Rules Coordinator

OTS-6888.1


AMENDATORY SECTION(Amending Order 03-187, filed 8/7/03, effective 9/7/03)

WAC 220-88B-030   Emerging commercial fishery -- Eligibility for coastal experimental fishery permits -- Terms and conditions of use -- Renewal -- Vessel restriction -- Incidental catch.   (1) No individual may hold more than one Washington coastal spot shrimp experimental fishery permit.

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

(3) A coastal spot shrimp experimental fishery permit will be issued only to a natural person who:

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

(b) 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 designated vessel or vessels during the previous two calendar years. 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) Coastal spot shrimp experimental fishery permits may be revoked by the director, and future permits denied 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 will not be renewed if the emerging commercial fishery license is revoked or future fishing privileges of the licensee are suspended.

(5) 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 fifteen. Selection of persons to receive replacement permits shall be by gear or gear replacement type, and replacement permits will be offered in descending order first to persons who made the largest total of Washington coastal spot shrimp landings in each gear type during the original qualifying period, and then in descending order to persons who made the largest total of Washington coastal spot shrimp landings in each gear type. If no persons with coastal spot shrimp landings wish to participate, the director may offer a replacement permit by random drawing.

(6) 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.

(7) The total allowable catch of spot shrimp taken from Washington territorial waters west of the Bonilla-Tatoosh line and from adjacent waters of the Pacific Ocean during a calendar year is 250,000 pounds round weight provided that not more than 100,000 pounds may be taken south of 4704.00' N. latitude.

(8) Beginning January 1, 2003, through December 31, 2005, the allowable catch shall be allocated as follows: 175,000 pounds available to all permit holders and 75,000 pounds available to fishers who were converted from trawl to pot permits. Beginning January 1, 2006, the allowable catch is available to all permit holders.

(9) Vessel restriction: A coastal spot shrimp experimental fishery permit will not be issued to a person who designates a vessel greater than ten feet longer than the vessel designated as of March 31, 2003, provided that if the vessel designated as of March 31, 2003, is ten or more feet greater than the vessel used by the person to initially qualify for a coastal spot shrimp experimental fishery permit, the person may not designate a vessel greater in length than the vessel designated as of March 31, 2003.

(10) 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)).

[Statutory Authority: RCW 77.12.047. 03-17-007 (Order 03-187), 220-88B-030, filed 8/7/03, effective 9/7/03; 02-02-050 (Order 01-287), 220-88B-030, filed 12/27/01, effective 1/27/02; 00-17-107 (Order 00-152), 220-88B-030, filed 8/16/00, effective 9/16/00. Statutory Authority: RCW 75.08.080. 99-01-154 (Order 98-257), 220-88B-030, filed 12/22/98, effective 1/22/99.]


AMENDATORY SECTION(Amending Order 01-287, filed 12/27/01, effective 1/27/02)

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) Pot size is limited to a maximum 153 inch bottom perimeter and a maximum 24 inch height.

(c) 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 taken with spot shrimp pot gear, 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. It is ((lawful)) unlawful for persons fishing in the coastal spot shrimp experimental fishery to ((participate in the coastal bottomfish fishery under WAC 220-44-050, and to retain)) deliver spot shrimp while having on board bottomfish taken in ((that)) the coastal bottomfish fishery under WAC 220-44-050.

[Statutory Authority: RCW 77.12.047. 02-02-050 (Order 01-287), 220-88B-040, filed 12/27/01, effective 1/27/02; 00-17-107 (Order 00-152), 220-88B-040, filed 8/16/00, effective 9/16/00. Statutory Authority: RCW 75.08.080. 99-01-154 (Order 98-257), 220-88B-040, filed 12/22/98, effective 1/22/99.]

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