Original Notice.

     Preproposal statement of inquiry was filed as WSR 04-04-007.

     Title of Rule: Coastal experimental pilchard fishery.

     Purpose: Amend coastal pilchard commercial fishery rules.

     Statutory Authority for Adoption: RCW 77.12.047.

     Statute Being Implemented: RCW 77.12.047.

     Summary: These rule changes simplify and clarify eligibility for participation in the coastal pilchard fishery, delete outdated references, and amend by-catch allowances.

     Reasons Supporting Proposal: This proposal offers replacement licenses to persons who have historically targeted pilchard in the experimental fishery.

     Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (306) 902-2930; Implementation: Phil Anderson, 1111 Washington Street, Olympia, (306) 902-2720; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia,(306) 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 department has determined that the coastal pilchard fishery can support a fleet of twenty-five vessels in the experimental phase of the fishery. The fishery is currently undersubscribed. In order to allow participation by persons who have fished pilchard as a primary target, the level is set to exclude persons who may have accidentally encounter pilchard as a by-catch in a fishery directed at other species. Use of single designated vessels without mid-season change provides stability in the seasonal fishery. The outdated provisions of the rule are deleted, and, under guidelines from the Pacific Fisheries Management Council, the limitation on by-catch of mackerel is eliminated.

     Proposal Changes the Following Existing Rules: Amend coastal pilchard rules.

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

     1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: There is a date change for having no outstanding observer fees, an application for a replacement license must be received by June 1, 2004, and vessel designation is required at least forty-eight hours prior to participation in the fishery.

     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: No compliance costs as a result of these rule changes.

     4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? This rule changes the application process for replacement licenses. Instead of random drawing from persons who have landed five metric tons, persons who have landed at least forty metric tons under license from 2000-2002 are eligible to apply, until the fleet size is capped at twenty-five licensees. Persons who made incidental landings will be ineligible to apply. Thus, there is no loss of sales or revenue to such persons, since they are not currently licensed. There is, however, loss of potential future sales or revenue. The department believes the persons who participated in the directed fishery will form a pool of qualified applicants sufficient to harvest the available resource. This will be reviewed at the completion of the five-year experimental fishery, and legislative recommendations may suggest expansion or reduction of the fleet.

     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.

     No cost of compliance as a result of these rule changes.

     6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: There are no costs as a result of these rule changes.

     7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department has held [a] meeting with the coastal sardine fishers. The department has used the Sardine Advisory Board for industry participation, and has solicited comments from both fishers and processors.

     8. A List of Industries That Will Be Required to Comply with the Rule: Coastal pilchard experimental fishery participants.

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

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

     Hearing Location: Natural Resources Building, 1111 Washington Street, Olympia, WA, on April 27, 2004, at 1:00 p.m.

     Assistance for Persons with Disabilities: Contact Deb Kuttle by April 13, 2004, TDD (360) 902-2720 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 April 26, 2004.

     Date of Intended Adoption: April 27, 2004.

March 24, 2004

Evan Jacoby

Rules Coordinator

OTS-7018.2

AMENDATORY SECTION(Amending Order 03-111, filed 6/4/03, effective 7/5/03)

WAC 220-88C-030   Eligibility to participate in the coastal pilchard fishery.   (1) ((For 2003, a coastal pilchard experimental fishery permit will be issued only to a person who:

     (a) Can demonstrate by valid Washington fish receiving tickets that at least forty metric tons cumulative weight of pilchard taken from Pacific Ocean waters were landed under the person's emerging commercial fishery license during the previous three calendar years (2000, 2001, and 2002) or can demonstrate by valid Washington fish receiving tickets that pilchard were landed under the person's emerging commercial fishery license during two of the three calendar years (2000, 2001, or 2003);

     (b) Has purchased an emerging commercial fisheries license by July 1, 2003; and

     (c) As of July 1, 2003, has no outstanding observer fees owed to the department for the 2000, 2001, or 2002 coastal pilchard trial fisheries.

     (2))) Beginning 2004, a coastal pilchard experimental fishery permit will be issued only to a natural person who:

     (a) Held such a permit the previous year;

     (b) Has purchased an emerging commercial fisheries license by April 1st; and

     (c) As of April 1st has no outstanding observer fees owed to the department.

     (((3))) (2) Beginning 2005, a coastal pilchard experimental fishery permit will be issued only to a natural person who:

     (a) Held such a permit the previous year;

     (b) Can demonstrate by valid Washington fish receiving tickets that at least forty metric tons cumulative weight of pilchard taken from Pacific Ocean waters were landed under the person's emerging commercial fishery license during the previous two calendar years;

     (c) Has purchased an emerging commercial fisheries license by April 1st; and

     (d) As of ((April)) December 1st of ((each)) the previous licensing year has no outstanding observer fees owed to the department.

     (((4))) (3) Coastal pilchard 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 violation of other commercial fishing rules, and shall be revoked if the emerging commercial fishery license is suspended. A coastal pilchard 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))) (4) If less than twenty permits are issued to persons who meet the permit renewal requirements specified in subsection((s (2) and (3))) (1) of this section, the director may offer replacement permits, provided that:

     (a) The total number of permits issued by the director, including replacement permits, shall not exceed twenty-five.

     (b) Replacement permits shall be issued to persons who ((had)) can demonstrate by valid Washington fish receiving tickets that a minimum of forty metric tons (cumulative round weight) of pilchard were landed ((a minimum of five metric tons (cumulative round weight) of pilchard taken from Pacific Ocean waters)) under the person's emerging commercial fishery license in 2000, 2001, and 2002, ((by random drawing)) and who have submitted a completed replacement permit application to the department by June 1, 2004.

     (c) If ((less than twenty permits are issued to persons who meet the minimum landing requirements specified in (b) of this subsection, the director may offer a replacement permit by random drawing)) more than twenty-five persons meet the criteria specified in (b) of this subsection, replacement permits will be issued to persons with the highest cumulative landings during the qualifying period, in descending order, until twenty-five permits are issued.

     (((6))) (5) Coastal pilchard experimental fishery permits are only valid for the year issued and expire on ((December)) October 31st of the year issued with the expiration of the emerging commercial fishery license.

     (((7))) (6) Permit holders must designate a vessel to be used in the coastal pilchard emerging commercial fishery ((by May 31 of each year)) at least forty-eight hours before their first pilchard fishing trip of each season. Once designated, permit holders may not change vessel designation ((between June 1 and October 31)) for the remainder of the season, except in an emergency and then only if allowed by the director. The same vessel may not be designated on more than one emerging commercial fishery license and accompanying coastal pilchard experimental fishery permit.

[Statutory Authority: RCW 77.12.047. 03-13-002 (Order 03-111), § 220-88C-030, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), § 220-88C-030, filed 3/13/01, effective 4/13/01.]

     (2) It is unlawful to retain any species taken incidental to pilchard in the coastal pilchard fishery except anchovy, mackerel, and squid. ((Incidental landings of Pacific mackerel cannot exceed forty-five percent, by weight, of the total landing.)) Any salmon encircled in the purse seine must be released prior to completion of the set, and no salmon may be landed on the fishing vessel.

     (3) The transfer of catch from one vessel to another is prohibited.

     (4) Legal purse seine gear must be aboard the vessel making the landing.

     (5) Pilchard landings must be delivered to a shoreside processing facility.

[Statutory Authority: RCW 77.12.047. 03-13-002 (Order 03-111), § 220-88C-040, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), § 220-88C-040, filed 3/13/01, effective 4/13/01.]

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