WSR 11-23-177

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed November 23, 2011, 9:57 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-20-011 on September 22, 2011.

Title of Rule and Other Identifying Information: WAC 220-52-050 Ocean pink shrimp trawl fishery -- Coastal waters.

Hearing Location(s): Washington Department of Fish and Wildlife, Region 6 Office, 48 Devonshire Road, Montesano, WA 98563, on Thursday, January 12, 2012, at 10 a.m.

Date of Intended Adoption: January 24, 2012.

Submit Written Comments to: Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail Lori.Preuss@dfw.wa.gov, fax (360) 902-2155, by December 27, 2011.

Assistance for Persons with Disabilities: Contact Tami Lininger by December 27, 2011, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to update gear rules in the ocean pink shrimp trawl fishery, to reduce by-catch. The proposed gear modifications include prohibiting the use of "soft-panel" excluders (also known as biological reduction devices) and reducing the bar spacing allowed on rigid panel excluders from a maximum of two inches to a maximum of three-quarters inches.

Reasons Supporting Proposal: The coastal pink shrimp trawl fishery catches Pacific eulachon smelt (Thaleichthys pacificus) as by-catch. In 2010, the National Marine Fisheries Service listed eulachon smelt as a threatened species under the Endangered Species Act (ESA). The proposed rule changes will reduce the catch of this ESA listed species in the pink shrimp trawl fishery while maintaining the opportunity to continue to fish for pink shrimp.

Statutory Authority for Adoption: RCW 77.04.020, 77.12.045, 77.12.047.

Statute Being Implemented: RCW 77.04.020, 77.12.045, 77.12.047.

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

Name of Proponent: The Washington department of fish and wildlife, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Lorna Wargo, 1111 Washington Street S.E., Olympia, WA 98504, (360) 249-4628; and Enforcement: Chief Bruce Bjork, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2373.

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: This rule will require holders of Washington coastal pink shrimp trawl licenses that wish to fish for or possess pink shrimp with trawl gear to utilize a biological reduction device (reduction device; BRD) or finfish excluder that meets specific criteria. These criteria are intended to address conservation concerns by reducing the amount of by-catch.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply With Such Requirements: Fishers will need to acquire finfish excluders from manufacturers.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: The rule changes proposed carry compliance costs for some fishers due to new gear requirements. Not all fishers will be affected since some voluntarily purchased equipment (reduction device or excluder) that meets the new criteria in advance of the rule change. Businesses are familiar with excluders/reduction devices as some variation of this type of equipment has been mandatory for over a decade.

The rule would impose gear restrictions by reducing the types of allowed reduction devices through the elimination of "soft-panel" excluders, and by decreasing the maximum bar spacing in rigid panel reduction devices from two inches between panel bars to 3/4 inches.

The estimated cost of compliance with these requirements is approximately $1000 per trawl net or $2000 per vessel since most are rigged with two nets. This estimate includes the purchase price of a rigid panel excluder, its preparation for installation and labor costs associated with installation in the trawl nets.

4. Will Compliance With the Rule Cause Businesses to Lose Sales or Revenue? Compliance with the new gear requirements, specifically, the narrower bar spacing on rigid panel grates, could potentially lead to reduced catch of pink shrimp when pink shrimp volumes are strong, i.e. when fishers are towing through particularly dense schools. However, for conservation purposes the proposed rules are necessary. In 2010, the National Marine Fisheries Service listed Pacific eulachon as a threatened species under the ESA. The coastal shrimp trawl fishery was deemed a moderate threat to recovery of this species. The proposed gear modifications are intended to reduce by-catch in the coastal shrimp trawl fishery while preserving the opportunity to continue harvesting pink shrimp.

5. Cost of Compliance for Small Businesses Compared With the 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:

1. Cost per employee;

2. Cost per hour of labor; or

3. Cost per one hundred dollars of sales.

The only metric available to the department for identifying the largest ten percent of businesses, or for use in a cost comparison for small and large businesses, is the ex vessel value of pink shrimp sold by each pink shrimp commercial license holder in recent years. This ex vessel value is used as a surrogate for sales in this analysis, but it is an underestimate of total sales, since the majority of the businesses affected have additional revenue from other fisheries and related ventures. In addition, this analysis assumes that all license holders will be required to purchase equipment described above in (3). Many of license holders already own gear that meets the requirements, and will not be required to purchase new gear. Other licenses are not actively fished. These two factors combined mean that the cost of compliance per one hundred dollars of sales will be overestimated for small and large businesses. Also note that each individual license was treated as a business for this analysis, although some businesses own more than one license.

The number of coastal pink shrimp trawl licenses issued in 2010 and 2011 was eighty-three and eighty-two, respectively. Of these, the number of active licenses - those with any amount of landings or sales of pink shrimp - was twenty and fourteen in 2010 and 2011, respectively. For the ten percent of licenses with the highest ex vessel sales values for 2009 and 2010 combined, the average ex vessel value per year was $623,830. This means that the cost of compliance per $100 of ex vessel value would be $0.32. Most businesses affected by these rules qualify as small businesses, so an average cost of compliance for all businesses was calculated for comparison. The average ex vessel value per year for all actively fished licenses for 2009 and 2010 was $216,938, meaning the average cost of compliance would be $0.92 per $100 of ex vessel value.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses, or Reasonable Justification for Not Doing So: Most businesses affected by these rules are small businesses. The department is only seeking to modify the rules as necessary to meet conservation needs.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: WDFW routinely has interacted with and received input from affected businesses through annual meetings. In addition, a meeting to address this specific rule proposal will be held.

8. A List of Industries That Will Be Required to Comply with the Rule: All licensed fishers wishing to harvest or possess pink shrimp taken with trawl gear in the all-citizen coastal pink shrimp fishery will be required to comply with these rules.

9. An Estimate of the Number of Jobs That Will Be Created or Lost as a Result of Compliance with the Proposed Rule: Compliance with the rules will not result in the creation or loss of jobs.

A copy of the statement may be obtained by contacting Lorna Wargo, Washington Department of Fish and Wildlife, Region 6 Office, 48 Devonshire Road, Montesano, WA 98563, phone (360) 249-4628, fax (360) 249-1229, e-mail Lorna.Wargo@dfw.wa.gov.

A cost-benefit analysis is not required under RCW 34.05.328. This proposal does not involve hydraulics.

November 23, 2011

Lori Preuss

Rules Coordinator

OTS-4505.2


AMENDATORY SECTION(Amending WSR 10-05-059, filed 2/11/10, effective 3/14/10)

WAC 220-52-050   Ocean pink shrimp trawl fishery -- Coastal waters.   It is unlawful to fish for, possess or deliver ocean pink shrimp taken for commercial purposes from the waters of the Exclusive Economic Zone, except as provided for in this section:


Area


(1) It is unlawful to fish for ocean pink shrimp within the territorial boundaries of the state. A violation of this subsection is punishable under RCW 77.15.550, Violation of commercial fishing area or time -- Penalty.


Season


(2) It is unlawful to fish for, take, or possess on board a fishing vessel, pink shrimp, except during the following time: The open season for trawl gear is April 1 through October 31 of each year. A violation of this subsection is punishable under RCW 77.15.550, Violation of commercial fishing area or time -- Penalty.


Gear


(3) ((It is unlawful to fish with or possess pink shrimp taken with shrimp trawl gear having a net mesh size greater than two inches in the intermediate or codend, except for net mesh used in by-catch reduction devices defined under subsection (4) of this section. However, it is lawful to have net mesh larger than two inches in the wings or body of the trawl.

(4))) It is unlawful to fish with trawl gear for pink shrimp for commercial purposes unless an approved by-catch reduction device is used in each net. A by-catch reduction device, also known as a finfish excluder, uses a rigid panel or grate of narrowly spaced bars to guide fish out of an escape hole forward of the panel, generally in the top of the net. An approved by-catch reduction device((s include)) must meet the following criteria:

(a) ((A Soft Panel By-catch Reduction Device, which uses a mesh panel to guide fish out of an escape hole. An approved soft-panel must meet the following criteria:

(i) The panel must completely cover some portion of the net in cross-section, meaning it must extend completely across the full opening of the net in one continuous piece. The panel must be securely fastened to the net around the entire perimeter, such that a 110 mm diameter sphere cannot pass beyond the panel into the terminal end of the codend;

(ii) The panel meshes must be constructed of netting material with individual meshes no larger than 5.5 inches, measured between opposing knots, and must be constructed of a single panel of continuous netting, without zippers or other devices designed to allow disabling of the panel such that large fish can pass back into the codend;

(iii) The escape hole must, when spread open, expose a hole of at least 100 square inches; and

(iv) The escape hole must be forward of the mesh panel and must begin within four meshes of the furthest aft point of attachment of the mesh panel to the net.

(b) A Nordmore Grate By-catch Reduction Device, which uses a rigid panel of narrowly spaced vertical bars to guide fish out of an escape hole in front of the panel, generally in the top of the net. An approved Nordmore grate must meet the following criteria:

(i))) The exterior circumference of the rigid panel must fit completely within the interior circumference of the trawl net, such that there is no space between the panel and the net that will allow a 110 mm sphere to pass beyond the panel, into the terminal area of the codend;

(((ii))) (b) None of the openings between the ((vertical)) bars in the rigid panel may exceed ((two)) 0.75 inches ((in width));

(((iii))) (c) The escape hole must, when spread open, expose a hole of at least 100 square inches; and

(((iv))) (d) The escape hole must be forward of the rigid panel and must begin within four meshes of the furthest aft point of attachment of the rigid panel to the net.

(((5) It is unlawful to remove trawl gear from the vessel prior to offloading of shrimp.

(6))) (4) It is unlawful to modify by-catch reduction devices in any way that interferes with their ability to allow fish to escape from the trawl, except ((for the purpose of testing the by-catch reduction device to measure shrimp loss. Authorized)) as provided by special gear permit as described in subsection (5) of this section.

(5) Testing of by-catch reduction devices ((must meet the following criteria:

(a) Testing)) is allowed by special gear permit only, consistent with the terms and conditions of the permit((; and

(b) For vessels fishing two nets simultaneously (double-rigged boats), only one net may contain a disabled by-catch reduction device, and the other net must be fishing a fully functional by-catch reduction device as described in subsection (4) of this section)).

(6) It is unlawful to remove trawl gear from the vessel prior to offloading of shrimp.

(7) A violation of subsections (((4))) (3) through (6) of this section is punishable under RCW 77.15.520, Commercial fishing -- Unlawful gear or methods -- Penalty.

(8) It is unlawful to land or deliver pink shrimp to an original receiver that exceeds the following count per pound restriction: 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 consist of at least one pound each of whole, unbroken shrimp taken at random from throughout the individual load landed or in possession. This landing restriction shall apply only to loads of 3,000 pounds of shrimp or more. A violation of this subsection is punishable under RCW 77.15.550, Violation of commercial fishing area or time -- Penalty.


Incidental catch


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

(10) It is unlawful to retain any bottomfish species taken incidental to any shrimp trawl fishery, except as provided for in WAC 220-44-050.

(11) It is unlawful to retain any species of shellfish, except that it is permissible to:

(a) Retain up to 50 pounds round weight of other shrimp species taken incidentally in the ocean pink shrimp fishery; and

(b) Retain octopus or squid.

(12) A violation of subsections (9) through (11) of this section is punishable under RCW 77.15.550, Violation of commercial fishing area or time -- Penalty.


License


(13) An ocean pink shrimp delivery license is required to operate the gear provided for in this section, and it allows the operator to retain shrimp taken in the waters of the Exclusive Economic Zone.

A violation of this subsection is punishable under RCW 77.15.500, Commercial fishing without a license -- Penalty.


Permit


(14) It is unlawful to fish for, retain, land, or deliver shrimp taken with trawl gear without a valid shrimp trawl fishery permit.

(15) It is unlawful to take, retain, land, or deliver any shrimp or groundfish taken with trawl gear without complying with all provisions of a shrimp trawl fishery permit.

(16) A violation of subsection (14) or (15) of this section is punishable under RCW 77.15.750.

[Statutory Authority: RCW 77.12.047. 10-05-059, 220-52-050, filed 2/11/10, effective 3/14/10; 03-05-060 (Order 03-30), 220-52-050, filed 2/18/03, effective 3/21/03; 00-17-145 (Order 00-165), 220-52-050, filed 8/22/00, effective 9/22/00. Statutory Authority: RCW 75.08.080. 99-01-154 (Order 98-257), 220-52-050, filed 12/22/98, effective 1/22/99; 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.]

Washington State Code Reviser's Office