WSR 06-19-021

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed September 11, 2006, 1:18 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-15-073.

Title of Rule and Other Identifying Information: WAC 220-52-046 Crab fishery -- Seasons and areas, rules to provide protection to soft shell crab during the summer period.

Hearing Location(s): Red Lion at the Quay, 100 Columbia Street, Vancouver, WA, on November 3-4, 2006, at 8:00 a.m.

Date of Intended Adoption: December 8-9, 2006.

Submit Written Comments to: Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail barkemwb@dfw.wa.gov, fax (360) 902-2944, by November 1, 2006.

Assistance for Persons with Disabilities: Contact Nancy Burkhart by October 19, 2006, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Purpose of the proposal is to reduce wastage from handling mortality by moving the fishery from deep water to inshore waters when the bulk of the crab begin their molt period and go into a soft shell condition. This condition occurs first in the deep water and moves gradually toward the shallow water. Proposal will close off-shore waters at a specific date and bring the fleet in closer to shore in shallower water where hard shell crab condition is still the circumstance.

Reasons Supporting Proposal: Crab mortality that is reduced from this change will provide more crab and higher quality crab to the fishers and the market place.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

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

Name of Proponent: Department of fish and wildlife, governmental.

Name of Agency Personnel Responsible for Drafting: Morris W. Barker, 1111 Washington Street S.E., Olympia, (360) 902-2826; Implementation: Lew Atkins, 1111 Washington Street S.E., Olympia, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street S.E., Olympia, (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: No reporting or record keeping required. Proposal closes an off shore area to commercial crab fishers.

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

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: No increased costs are expected to meet compliance.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Initial revenue losses may occur from lost sales of poor quality crab but this should be recovered with increased revenue due to a better sales price on higher quality crab.

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:

1. Cost per employee;

2. Cost per hour of labor; or

3. Cost per one hundred dollars of sales.

As no permanent loss of revenue is expected there is no overall affect and those affected are less than 10% of this business category.

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 worked with the industry through a series of discussions on this subject and received support for this management change.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The rule proposals will be considered through the fish and wildlife commission public rule proposal process. The industry is familiar with the proposal as it has been previously discussed (see item #6) and implemented through the emergency rule process.

8. A List of Industries That Will Be Required to Comply with the Rule: Coastal commercial Dungeness crab fishers.

A copy of the statement may be obtained by contacting Morris W. Barker, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2826, fax (360) 902-2944, e-mail barkemwb@dfw.wa.gov.

A cost-benefit analysis is not required under RCW 34.05.328. These rule proposals do not affect hydraulic rules.

September 11, 2006

Morris W. Barker

Rules Coordinator

OTS-9039.1


AMENDATORY SECTION(Amending Order 06-58, filed 3/31/06, effective 5/1/06)

WAC 220-52-046   Crab fishery -- Seasons and areas.   "Commercial crab fishing" means any taking, fishing, use, or operation of gear to fish for crabs for commercial purposes, and shall include the possession of crab on the water for commercial purposes, and the landing or initial delivery of crab for commercial purposes.

The lawful open times and areas for commercial crab fishing are as follows:

(1) All Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas are open for commercial crab fishing beginning 8:00 a.m. October 1st through the following April 15th and, after 8:00 a.m. October 1st, from one-half hour before sunrise to one-half hour after sunset, except as provided by other subsections below.

(2) For purposes of crab harvest allocation, fishing season, and catch reporting, the Marine Fish-Shellfish Management and Catch Reporting Areas (Catch Areas) are modified as follows:

(a) Catch Area 26A-E shall include those waters of Puget Sound south of a line from Sandy Point (on Whidbey Island) to Camano Head and from Camano Head to the north tip of Gedney Island, and from the southern tip of Gedney Island east to the mainland, and north and east of a line that extends from Possession Point to the shipwreck located .8 nautical miles north of Picnic Point.

(b) Catch Area 26A-W shall include those waters of Puget Sound south and east of a line from Foulweather Bluff to Double Bluff, and northerly of a line from Apple Cove Point to Point Edwards, and south and west of a line that extends from Possession Point to the shipwreck located .8 nautical miles north of Picnic Point.

(3) The following areas are closed to commercial crab fishing except for treaty Indian commercial crab fishing where the treaty Indian crab fisher is following tribal openings that are in accordance with provisions of court orders in United States v. Washington:

(a) Areas 25C, 26B, 26C, 26D, 27A, 27B, 27C, 28A, 28B, 28C, and 28D.

(b) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 20A in Lummi Bay east of a line projected from the entrance buoy at Sandy Point to Gooseberry Point.

(c) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 21A in Bellingham Bay west of a line projected from the exposed boulder at Point Francis to the pilings at Stevie's Point.

(d) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24A east of a line projected north from the most westerly tip of Skagit Island and extending south to the most westerly tip of Hope Island, thence southeast to Seal Rocks, thence southeast to the green can buoy at the mouth of Swinomish Channel, thence easterly to the west side of Goat Island.

(e) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24B inside a line projected from Priest Point to the five-meter tower between Gedney Island and Priest Point, thence northwesterly on a line between the five-meter tower and Barnum Point to the intersection with a line projected true west from Kayak Point, thence east to shore.

(f) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 25A west of a line from the new Dungeness Light to the abandoned dock at the Three Crabs Restaurant.

(g) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 25D within a line projected from the Point Hudson Marina entrance to the northern tip of Indian Island, thence to Kala Point, and thence following the shoreline to the point of origin.

(4) The following areas are closed to commercial crab fishing during the periods indicated:

(a) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 20A between a line from the boat ramp at the western boundary of Birch Bay State Park to the western point of the entrance of the Birch Bay Marina and a line from the same boat ramp to Birch Point are closed October 1 through October 31 and March 1 through April 15.

(b) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24C inshore of the 400 foot depth contour within an area bounded by parallel lines projected northeasterly from Sandy Point and the entrance to the marina at Langley are closed October 1 through October 15.

(c) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 26A-W in Useless Bay north and east of a line from the south end of the Double Bluff State Park seawall (4758.782'N, 12230.840'W) projected 110 degrees true to the boulder on shore (4757.690'N, 12226.742'W) are closed from October 1 through October 15.

(d) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22B in Fidalgo Bay south of a line projected from the red number 4 entrance buoy at Cap Sante Marina to the northern end of the eastern most oil dock are closed October 1 through October 31, and March 1 through April 15 of each year.

(e) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Deer Harbor north of a line projected from Steep Point to Pole Pass are closed October 1 through October 31 and March 1 through April 15.

(f) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 26A-E east of a line that extends true north from the green No. 1 buoy at Possession Point to Possession Point and west of a line from the green No. 1 buoy at Possession Point northward along the 200-foot depth contour to the Glendale Dock are closed October 1 through October 15.

(5) The following areas are closed to commercial crab fishing until further notice:

(a) Those waters of Area 25E south of a line from Contractors Point to Tukey Point.

(b) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24A within a line projected from Rocky Point northeast to the red number 2 buoy north of Ustalady Point, thence to Brown Point on the northeast corner of Ustalady Bay.

(c) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24D south of a line from the point at the southern end of Honeymoon Bay (4803.047'N, 12232.306'W) to the point just north of Beverly Beach.

(d) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 26A east of a line projected from the outermost tip of the ferry dock at Mukilteo to the green #3 buoy at the mouth of the Snohomish River and west of a line projected from the #3 buoy southward to the oil boom pier on the shoreline.

(e) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 21B in Samish Bay south of a line from Point Williams to Fish Point in waters shallower than 60 feet in depth.

(f) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Westcott and Garrison Bays east of a line projected due south from Point White to San Juan Island.

(g) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 20A in Birch Bay east of a line projected from the boat ramp at the western boundary of Birch Bay State Park to the western point of the entrance to the Birch Bay Marina.

(h) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 21A inside of Chuckanut Bay east of a line projected north from Governor's Point to the east side of Chuckanut Island thence to Chuckanut Rock thence to the most southerly tip of Clark's Point.

(i) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Blind Bay south of a line projected due west from Point Hudson to its intersection with Shaw Island.

(j) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Fisherman Bay south of a line projected east-west through the red number 4 entrance buoy.

(k) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Mud Bay south of a line projected through Crab and Fortress Islands intersecting Lopez Island at either end.

(l) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22B in Padilla Bay within a line projected easterly from the northern end of the eastern most oil dock at March Point to the red number 2 buoy, thence southeasterly to the red number 8 buoy, thence west to shore and following the shoreline to the point of origin.

(m) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24A in Cornet Bay south of a line projected true east and west from the northernmost tip of Ben Ure Island.

(n) That portion of Marine Fish-Shellfish Management and Catch Reporting Area 20B which includes all waters of Prevost Harbor between Stuart Island and Satellite Island southwest of a line from Charles Point on Stuart Island to the northwest tip of Satellite Island and southwest of a line projected 120 degrees true from the southeast end of Satellite Island to Stuart Island.

(o) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in East Sound north of a line from the southern point of Judd Bay on the west to Giffin Rocks on the east.

(6) Coastal, Pacific Ocean, Grays Harbor, Willapa Bay and Columbia River waters are open to commercial crab fishing December 1 through September 15 except that it is lawful to set baited crab gear beginning at 8:00 a.m. November 28. However, the department may delay opening of the coastal crab fishery due to softshell crab conditions, in which case the following provisions will apply:

(a) After consultation with the Oregon Department of Fish and Wildlife, the director may, by emergency rule, establish a softshell crab demarcation line.

(b) For waters of the Pacific Ocean north of Point Arena, California, it is unlawful for a person to use a vessel to fish in any area for which the season opening has been delayed due to softshell crab for the first thirty days following the opening of such an area if the vessel was employed in the coastal crab fishery during the previous forty-five days.

(c) Fishers may not set crab gear in any area where the season opening has been delayed, except that gear may be set as allowed by emergency rule and shall allow setting sixty-four hours in advance of the delayed season opening time.

(d) It is unlawful to fish for or possess Dungeness crabs or to set crab gear in waters of the Pacific Ocean adjacent to the states of Oregon or California except during the lawful open seasons, areas and times specified by the individual states, except that it is unlawful for the holder of a Washington state Dungeness crab coastal fishery license to fish for or possess Dungeness crab taken in waters north of 4159'47"N. Lat. and south of 4615'00"N. Lat. unless the holder also holds the licenses or permits needed to commercially fish for Dungeness crab within the state waters of Oregon.

(7) In coastal and Pacific Ocean waters off Washington it is unlawful to place gear, fish for or possess Dungeness crab for commercial purposes in the following areas from July 16 through September 15, 2006: Those waters west of straight lines drawn in sequence from south to north between the following coordinates:


Land description Coordinate
(a) Washington - Oregon border 4615.00'N 12410.00'W
(b) Seaview 4620.00'N 12410.00'W
(c) Willapa Bay entrance 4640.00'N 12410.00'W
(d) N. Willapa Bay Spits 4643.50'N 12411.50'W
(e) Grayland 4650.00'N 12412.30'W
(f) Grays Harbor 4654.70'N 12416.00'W
(g) Ocean Shores 4700.00'N 12416.00'W
(h) Moclips 4715.00'N 12419.00'W
(i) Cape Elizabeth 4720.00'N 12425.00'W
(j) Raft River 4727.00'N 12428.60'W
(follow TD 41880 to waypoint # 11 N. Destruction Island)
(k) N. Destruction Island 4742.40'N 12431.50'W
(l) La Push 4755.00'N 12446.00'W
(m) Carol Island 4800.00'N 12449.50'W
(n) N. Lake Ozette 4807.60'N 12451.40'W
(o) Makah Bay 4820.00'N 12450.00'W
(p) Cape Flattery Point on land

[Statutory Authority: RCW 77.12.047. 06-08-064 (Order 06-58), 220-52-046, filed 3/31/06, effective 5/1/06; 06-01-013 (Order 05-275), 220-52-046, filed 12/9/05, effective 1/9/06; 01-11-009 (Order 01-74), 220-52-046, filed 5/3/01, effective 6/3/01. Statutory Authority: RCW 75.08.080. 99-10-062 (Order 99-59), 220-52-046, filed 5/3/99, effective 6/3/99; 98-19-012 (Order 98-185), 220-52-046, filed 9/4/98, effective 10/5/98; 98-05-043, 220-52-046, filed 2/11/98, effective 3/14/98; 97-08-052 (Order 97-55), 220-52-046, filed 3/31/97, effective 5/1/97; 94-12-009 (Order 94-23), 220-52-046, filed 5/19/94, effective 6/19/94; 93-15-051, 220-52-046, filed 7/14/93, effective 8/14/93; 91-10-024 (Order 91-22), 220-52-046, filed 4/23/91, effective 5/24/91; 87-05-038 (Order 87-08), 220-52-046, filed 2/18/87; 85-01-010 (Order 84-214), 220-52-046, filed 12/7/84; 84-08-014 (Order 84-24), 220-52-046, filed 3/27/84; 83-01-026 (Order 82-221), 220-52-046, filed 12/8/82; 80-13-064 (Order 80-123), 220-52-046, filed 9/17/80; Order 76-152, 220-52-046, filed 12/17/76; Order 1179, 220-52-046, filed 11/19/74; Order 1112, 220-52-046, filed 4/15/74; Order 1057, 220-52-046, filed 5/22/73; Order 920, 220-52-046, filed 5/13/71; Order 807, 220-52-046, filed 1/2/69, effective 2/1/69. Formerly WAC 220-52-040 (2), (3), (4) and (9).]

Washington State Code Reviser's Office