WSR 09-09-125

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed April 22, 2009, 9:34 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-03-034 on January 12, 2009.

Title of Rule and Other Identifying Information: WAC 220-36-023 and 220-40-027, rules for commercial salmon fishing in Grays Harbor and Willapa Bay.

Hearing Location(s): Natural Resources Building, Room 682, 1111 Washington Street S.E., Olympia, WA 98504, on Friday, June 5, 2009, at 1:30 p.m. - 2:30 p.m.

Date of Intended Adoption: June 19, 2009.

Submit Written Comments to: Rules Coordinator, WDFW Enforcement, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail Lori.preuss@dfw.wa.gov, fax (360) 902-2155, by May 22, 2009.

Assistance for Persons with Disabilities: Contact Susan Yeager by May 22, 2009, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules incorporate the recommendations of the North of Falcon subgroup of the Pacific Fisheries Management Council to take harvestable salmon while protecting species of fish listed as endangered.

Reasons Supporting Proposal: To protect species of fish listed as endangered while supporting commercial salmon fishing.

Statutory Authority for Adoption: RCW 77.12.047 and 77.04.020.

Statute Being Implemented: RCW 77.12.047 and 77.04.020.

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

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

Name of Agency Personnel Responsible for Drafting: Barbara McClellen, 48 Devonshire Road, Montesano, WA 98563, (360) 249-4628; Implementation: Jim Scott, 1111 Washington Street, Olympia, (360) 902-2651; and Enforcement: 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: These rules incorporate the recommendations of the North of Falcon subgroup of the Pacific Fisheries Management Council to take harvestable salmon while protecting species of fish listed as endangered. The rules include legal gear requirements, area restrictions, and open periods for commercial salmon fisheries occurring in Willapa Bay and Grays Harbor.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: None - these rule changes clarify dates for anticipated open periods, areas that are closed in Grays Harbor and Willapa Bay to commercial harvest methods, and legal gear requirements.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: None anticipated.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No.

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.

There are no anticipated costs of compliance.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The department issues an annual pamphlet and mailer to all license holders to alert them to anticipated open periods, closed areas, and gear requirements.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department cosponsors the annual North of Falcon process, which is a series of public meetings over a period of several months from February through April each year, and which allows constituents to supply input on the rules contained in this filing.

8. A List of Industries That Will Be Required to Comply with the Rule: All licensed fishers using legal commercial gear types seeking to harvest salmon in the all-citizen commercial salmon fisheries occurring in Grays Harbor and Willapa Bay.

A copy of the statement may be obtained by contacting Lori Preuss, WDFW Enforcement, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155, e-mail Lori.preuss@dfw.wa.gov.

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

April 22, 2009

Lori Preuss

Rules Coordinator

OTS-2345.1


AMENDATORY SECTION(Amending Order 08-166, filed 7/3/08, effective 8/3/08)

WAC 220-36-023   Salmon -- Grays Harbor fall fishery.   August 16 through December 31 of each year, it is unlawful to fish for salmon in Grays Harbor for commercial purposes or to possess salmon taken from those waters for commercial purposes, except that:


Fishing periods


(1) Gill net gear may be used to fish for salmon and sturgeon according to the chart below. All nonlegal sturgeon and nonlegal steelhead must be handled with care to minimize injury and must be released immediately to the river/bay:


Time: Areas:
6:00 p.m. ((October 11)) September 3 through 6:00 p.m. ((October 12, 2008)) September 4, 2009;

((AND))

6:00 p.m. ((October 15)) September 8 through 6:00 p.m. ((October 16, 2008.

Area 2C
7:00 a.m. October 8 through 7:00 p.m. October 8, 2008;

7:00 a.m. October 9 through 7:00 p.m. October 9, 2008;

7:00 a.m. October 10 through 7:00 p.m. October 10, 2008.)) September 9, 2009;

6:00 a.m. September 13 through 6:00 p.m. September 14, 2009;

6:00 a.m. September 20 through 6:00 p.m. September 21, 2009;

AND

6:00 p.m. September 29 through 6:00 p.m. September 30, 2009.

((That portion of Area 2A upstream from the Highway 101 Bridge at Aberdeen, to a line projected from the Lakeside Industries asphalt plant tower at a right angle to the thread of the stream to the opposite shore.

AND

That portion of Area 2D lying easterly of a north-south line from the confluence of the Hoquiam and Chehalis rivers to Renney Island, then easterly to Range Marker G, then to the eastern boundary of Area 2D at the Highway 101 Bridge.))


Gear


(2) Gill net gear restrictions: All areas:

(a) Drift gill net gear only. It is unlawful to use set net gear.

(b) ((6-inch maximum mesh restriction, and nets may be no more than 55 meshes deep.

(c))) Nine-inch maximum mesh size allowed.

(c) Nets must be single mesh size.

(d) Soak time must not exceed 45 minutes. Soak time is defined as the time elapsed from when the first of the gill net web is deployed into the water until the gill net web is fully retrieved from the water.

(((d))) (e) Each boat must have two operable recovery boxes or one box with two chambers on board when fishing Area ((2A/2D on October 8, 9, and 10, 2008)) 2C. Each box must be operating during any time the net is being retrieved or picked. The flow in the recovery box must be a minimum of 16 gallons per minute in each chamber of the box, not to exceed 20 gallons per minute. Each chamber of the recovery box must meet the following dimensions as measured from within the box: The inside length measurement must be at or within 39 1/2 inches to 48 inches, the inside width measurements must be at or within 8 to 10 inches, and the inside height measurement must be at or within 14 to 16 inches.

Each chamber of the recovery box must include a water inlet hole between 3/4 inch and 1 inch in diameter, centered horizontally across the door or wall of the chamber and 1 3/4 inches from the floor of the chamber. Each chamber of the recovery box must include a water outlet hole opposite the inflow that is at least 1 1/2 inches in diameter. The center of the outlet hole must be located a minimum of 12 inches above the floor of the box or chamber. The fisher must demonstrate to department employees, fish and wildlife enforcement officers, or other peace officers, upon request, that the pumping system is delivering the proper volume of fresh river/bay water into each chamber.

(e) All ((Chinook)) wild coho, nonlegal sturgeon, and steelhead must be handled with care to minimize injury to the fish and must be released immediately to the river/bay or to an operating recovery box.

(f) Any fish that is bleeding or lethargic must be placed in the recovery box prior to being released to the river/bay.

(g) All fish placed in recovery boxes must be released to the river/bay prior to landing or docking.


Other


(3) Quick reporting is required for wholesale dealers and fishers retailing their catch under a "direct retail endorsement." According to WAC 220-69-240(12), reports must be made by 10:00 a.m. the day following landing.

(4) Fishers must take department observers if requested by department staff when participating in these openings. Pursuant to WAC 220-69-240, fishers also must provide notice of intent to participate by contacting quick reporting by phone, fax or e-mail. Notice of intent must be given prior to ((10:00 a.m.)) 5:00 p.m. on ((October 6)) August 28, 2009, for the ((October 8-10)) openings in Area((s 2A/2D)) 2C.

(5) NOAA Fisheries has listed the southern population of green sturgeon as threatened under the Endangered Species Act, effective July 6, 2006. Most of the green sturgeon taken in Washington fisheries are from the southern population. Therefore, the retention of green sturgeon is prohibited((,)); to protect this federally listed stock.

[Statutory Authority: RCW 77.12.047 and 77.04.020. 08-15-003 (Order 08-166), 220-36-023, filed 7/3/08, effective 8/3/08. Statutory Authority: RCW 77.04.020, 77.12.047, and 77.65.200. 07-17-010, 220-36-023, filed 8/3/07, effective 9/3/07. Statutory Authority: RCW 77.12.047. 05-17-006 (Order 05-167), 220-36-023, filed 8/3/05, effective 9/3/05; 04-16-013 (Order 04-183), 220-36-023, filed 7/22/04, effective 8/22/04; 03-18-004 (Order 03-208), 220-36-023, filed 8/20/03, effective 9/20/03; 01-13-055 (Order 01-104), 220-36-023, filed 6/15/01, effective 7/16/01; 00-23-065 (Order 00-240), 220-36-023, filed 11/15/00, effective 12/16/00. Statutory Authority: RCW 75.08.080. 99-24-104 (Order 99-206), 220-36-023, filed 11/30/99, effective 12/31/99. Statutory Authority: RCW 75.08.080 and 77.12.040. 98-15-081 (Order 98-122), 220-36-023, filed 7/15/98, effective 8/15/98. Statutory Authority: RCW 75.08.080. 97-15-148 (Order 97-123), 220-36-023, filed 7/23/97, effective 8/23/97; 96-13-035 (Order 96-77), 220-36-023, filed 6/11/96, effective 7/12/96; 95-13-065 (Order 95-76), 220-36-023, filed 6/19/95, effective 7/20/95; 94-13-014 (Order 94-46), 220-36-023, filed 6/3/94, effective 7/4/94; 93-14-042 (Order 93-54), 220-36-023, filed 6/29/93, effective 7/30/93; 90-18-023 (Order 90-77), 220-36-023, filed 8/24/90, effective 9/24/90; 89-16-056 (Order 89-71), 220-36-023, filed 7/28/89, effective 8/28/89.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

OTS-2346.1


AMENDATORY SECTION(Amending Order 08-166, filed 7/3/08, effective 8/3/08)

WAC 220-40-027   Salmon -- Willapa Bay fall fishery.   August 16 through December 31 of each year, it is unlawful to fish for salmon in Willapa Bay for commercial purposes or to possess salmon taken from those waters for commercial purposes, except that:


Fishing periods


(1) Gill net gear may be used to fish for salmon and sturgeon as shown below. All nonlegal sturgeon and nonlegal steelhead must be handled with care to minimize injury to the fish and must be released immediately to the river/bay:


Time: Area:
6:00 p.m. September 15 through 6:00 p.m. September ((17, 2008)) 19, 2009. Areas 2G east of a line projected true south from the most waterward exposed end of the rock jetty located near Washaway Beach, 2H west of Willapa Channel Marker 40, 2J north of a true east-west line drawn through the North Entrance Marker to the Nahcotta Boat Basin (RF #2), and 2M.
6:00 p.m. September ((21)) 22 through 6:00 p.m. September ((22, 2008)) 23, 2009;

AND

6:00 p.m. September 28 through 6:00 p.m. September 29, ((2008)) 2009.

Area 2K
6:00 p.m. September ((21)) 22 through 6:00 p.m. ((September 26, 2008.

AND

6:00 p.m. September 28 through 6:00 p.m.)) October ((5, 2008)) 7, 2009.

Areas 2G east of a line projected true south from the most waterward exposed end of the rock jetty located near Washaway Beach, 2H, 2J north of a true east-west line drawn through the North Entrance Marker to the Nahcotta Boat Basin (RF #2), and 2M.
6:00 p.m. October ((7)) 10 through 6:00 p.m. October ((10, 2008;

AND

6:00 p.m. October 12 through 6:00 p.m. October 14, 2008)) 14, 2009.

Areas 2G east of a line projected true south from the most waterward exposed end of the rock jetty located near Washaway Beach, 2H, 2J north of a true east-west line drawn through the North Entrance Marker to the Nahcotta Boat Basin (RF #2), and 2M.
((Noon,)) 6:00 p.m. November ((6)) 10, through 6:00 p.m. November ((14, 2008)) 19, 2009. Areas 2G east of a line projected true south from the most waterward exposed end of the rock jetty located near Washaway Beach, 2H west of the Willapa Channel Marker 40, 2J north of a true east-west line drawn through the North Entrance Marker to the Nahcotta Boat Basin (RF #2), and 2M.
((6:00 p.m.)) Noon, November ((14, 2008)) 6, 2009, through noon, November 30, ((2008)) 2009. Areas 2G, 2H, 2J, and 2M.

(2) The Tokeland Boat basin is closed to commercial fishing during the openings in Salmon Management and Catch Reporting Area (SMCRA) 2G, described in this section. The Tokeland Boat basin is that portion of SMCRA 2G bounded on the south by the shoreline of the boat basin, on the west by the seawall, and on the north and east by a line from the Tokeland Channel Marker "3" (flashing green, 4-seconds), to Tokeland Channel Marker "4," to the tip of the seawall.


Gear


(3) Gill net gear restrictions - All areas:

(a) Drift gill net gear only. It is unlawful to use set net gear.

(b) September 1 through ((October 5, 2008)) September 21, 2009: Six-inch maximum mesh, and net may be no more than fifty-five meshes deep. Net must hang straight from top to bottom. Strings may only be used to secure ((break away)) breakaway panels.

(c) ((October 7)) September 22 through October 31, ((2008)) 2009: Six and one-half inch maximum mesh.

(d) November 6 through November 30, ((2008)) 2009: Nine-inch minimum mesh; except from 6:00 p.m. November 10 through 6:00 p.m. November ((14, 2008)) 19, 2009 (coho directed), there are two alternatives:

(i) Use six-inch maximum mesh; and net may be no more than fifty-five meshes deep. Net must hang straight from top to bottom. Strings may only be used to secure break-away panels; or

(ii) Use nine-inch minimum mesh.

(iii) Only one net of either six-inch or nine-inch configuration, not exceeding fifteen hundred feet, may be ((on board the vessel)) used when in the act of fishing.


Other


(4) Quick reporting is required for wholesale dealers and fishers retailing their catch under a "direct retail endorsement." According to WAC 220-69-240(12), reports must be made by 10:00 a.m. the day following landing.

(5) NOAA Fisheries has listed the southern population of green sturgeon as threatened under the Endangered Species Act, effective July 6, 2006. Most of the green sturgeon taken in Washington fisheries are from the southern population. Therefore, the retention of green sturgeon is prohibited((,)); to protect this federally listed stock.

[Statutory Authority: RCW 77.12.047 and 77.04.020. 08-15-003 (Order 08-166), 220-40-027, filed 7/3/08, effective 8/3/08. Statutory Authority: RCW 77.04.020, 77.12.047, and 77.65.200. 07-17-010, 220-40-027, filed 8/3/07, effective 9/3/07. Statutory Authority: RCW 77.12.047. 05-17-006 (Order 05-167), 220-40-027, filed 8/3/05, effective 9/3/05; 04-16-013 (Order 04-183), 220-40-027, filed 7/22/04, effective 8/22/04; 03-18-004 (Order 03-208), 220-40-027, filed 8/20/03, effective 9/20/03; 02-16-021 (Order 02-173), 220-40-027, filed 7/26/02, effective 8/26/02; 01-13-055 (Order 01-104), 220-40-027, filed 6/15/01, effective 7/16/01; 00-23-065 (Order 00-240), 220-40-027, filed 11/15/00, effective 12/16/00. Statutory Authority: RCW 75.08.080. 99-24-104 (Order 99-206), 220-40-027, filed 11/30/99, effective 12/31/99. Statutory Authority: RCW 75.08.080 and 77.12.040. 98-15-081 (Order 98-122), 220-40-027, filed 7/15/98, effective 8/15/98. Statutory Authority: RCW 75.08.080. 97-15-148 (Order 97-123), 220-40-027, filed 7/23/97, effective 8/23/97; 96-13-035 (Order 96-77), 220-40-027, 6/11/96, effective 7/12/96; 95-13-065 (Order 95-76), 220-40-027, filed 6/19/95, effective 7/20/95; 94-16-017 (Order 94-61), 220-40-027, filed 7/21/94, effective 8/21/94; 93-14-042 (Order 93-54), 220-40-027, filed 6/29/93, effective 7/30/93; 90-18-023 (Order 90-77), 220-40-027, filed 8/24/90, effective 9/24/90; 89-16-056 (Order 89-71), 220-40-027, filed 7/28/89, effective 8/28/89.]

Washington State Code Reviser's Office