Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-06-075 on March 3, 2009.

     Title of Rule and Other Identifying Information: WAC 220-52-040 Commercial crab fishery -- Lawful and unlawful gear, methods, and other unlawful acts.

     Hearing Location(s): Natural Resources Building, First Floor, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on July 10-11, 2009, at 8:45 a.m.

     Date of Intended Adoption: August 7-8, 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 June 30, 2009.

     Assistance for Persons with Disabilities: Contact Susan Yeager by June 30, 2009, TTY (360) 902-2207 or (360) 902-2267.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rule implements a program to recover lost or abandoned commercial crab gear after the close of the coastal commercial fishery season through permits issued to licensed commercial crab fishers.

     Reasons Supporting Proposal: Lost or abandoned crab gear can continue to entrap crabs and other marine species and contribute to habitat degredation [degradation]. The proposed program allows commercial crab fishers to reduce these negative effects on marine life and habitat by removing derelict crab gear from the ocean.

     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: Lorna L. Wargo, 1111 Washington Street, Olympia, (360) 753-2600; Implementation: Lisa Veneroso, 1111 Washington Street, Olympia, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposal does not impose any costs. Participation by commercial fishers in the proposed lost and abandoned gear recovery program is voluntary.

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

May 28, 2009

Lori Preuss

Rules Coordinator

OTS-2349.1

AMENDATORY SECTION(Amending Order 07-285, filed 11/20/07, effective 12/21/07)

WAC 220-52-040   Commercial crab fishery -- Lawful and unlawful gear, methods, and other unlawful acts.   (1) Net fishing boats shall not have crab ((aboard)) on board. It is unlawful for any ((vessel geared or equipped with commercial net fishing gear)) person to ((have aboard)) possess any quantity of crab on board a vessel geared or equipped with commercial net fishing gear while ((it is)) fishing with the net gear for commercial purposes or ((when it has other)) while there are commercial quantities of food fish or shellfish ((aboard for commercial purposes)) on board. Violation of this section is punishable under RCW 77.15.550(1), violation of commercial fishing area or time. However, if such crab are taken or possessed in amounts that constitute a violation of commercial fishing area or time in the first degree, the violation is punishable under RCW 77.15.550(2).

     (2) Area must be open to commercial crabbing. ((Unless otherwise)) Except when acting lawfully under the authority of a valid permit as provided in (a) and (c) of this subsection, it is unlawful for any person to set, maintain, or operate any baited or unbaited shellfish pots or ring nets for taking crabs for commercial purposes in any area or at any time when the location is not ((opened)) open for ((taking crabs for)) commercial ((purposes)) crabbing by permanent rule or emergency rule of the department((: Provided, That)). Violation of this section is punishable under RCW 77.15.550(1), violation of commercial fishing area or time. However, if such crab are taken or possessed in amounts that constitute a violation of commercial fishing area or time in the first degree, the violation is punishable under RCW 77.15.550(2).

     (a) Following the close of a commercial crab season, ((permission)) an emergency coastal crab gear recovery permit may be granted by the director or his or her designee. These emergency permits will be considered on a case-by-case basis ((for)) to allow crab fishers to recover shellfish pots that were irretrievable due to extreme weather conditions at the end of the lawful season opening. Crab fishers must notify and apply to ((department)) the department's enforcement program for such ((permission)) emergency permits within twenty-four hours prior to the close of the commercial crab season.

     (b) It is unlawful to fail to follow the provisions of an emergency coastal crab gear recovery permit. Violation of this section is punishable under ESHB 1516.

     (c) Fifteen days after the close of the primary coastal commercial crab season, a coastal crab gear recovery permit may be granted by the director or his or her designee for licensed coastal Dungeness crab fishers to recover crab pots belonging to state licensed fishers that remain in the ocean.

     (d) It is unlawful to fail to follow the provisions of a coastal crab gear recovery permit. Violation of this section is punishable under ESHB 1516.

     (3) Crabs must be male and 6-1/4 inches across the back. It is unlawful for any person acting for commercial purposes to take, possess, deliver, or otherwise control:

     (a) Any female Dungeness crabs; or

     (b) Any male Dungeness crabs measuring less than 6-1/4 inches, caliper measurement, across the back of the crab's shell immediately in front of the shell's tips. Violation of this section is punishable under RCW 77.15.550 (1)(c).

     (4) Each person and each Puget Sound license is limited to 100 pots. It is unlawful for any person to take or fish for crab for commercial purposes in the Puget Sound licensing district if he or she is using, operating, or controlling any more than an aggregate total of 100 shellfish pots or ring nets. This limit shall apply to each license. However, this shall not preclude a person ((holding)) who holds two Puget Sound crab licenses from designating and using the licenses from one vessel as authorized by RCW 77.65.130. Violation of this section is punishable under RCW 77.15.520.

     (5) Additional area gear limits. ((The following Marine Fish-Shellfish Management and Catch Reporting Areas are restricted in the number of pots fished, operated, or used by a person or vessel and)) It is unlawful for any person to use, maintain, operate, or control crab pots or ring nets in excess of the ((following)) limits((:)) prescribed in each of the following Marine Fish-Shellfish Management and Catch Reporting Areas. Violation of this section is punishable under RCW 77.15.520.

     (a) 10 pots in Marine Fish-Shellfish Management and Catch Reporting Area 25E((.));

     (b) 10 pots in all waters of Marine Fish-Shellfish Management and Catch Reporting Area 25A south of a line projected true west from Travis Spit on Miller Peninsula((.));

     (c) 20 pots in that portion of Marine Fish-Shellfish Management and Catch Reporting Area 25A west of a line projected from the new Dungeness Light to the mouth of Cooper Creek, and east of a line projected from the new Dungeness Light to the outermost end of the abandoned dock at the Three Crabs Restaurant on the southern shore of Dungeness Bay((.)); and

     (d) 10 pots in that portion of Marine Fish-Shellfish Management and Catch Reporting Area 23D west of a line from the eastern tip of Ediz Hook to the I77 Rayonier Dock.

     (6) Groundline gear is unlawful. ((No crab pot or ring net may be attached)) It is unlawful to attach or ((connected)) connect a crab pot or ring net to ((other)) another crab pot or ring net by a common groundline or any other means that connects crab pots together. Violation of this section is punishable under RCW 77.15.520.

     (7) Crab buoy((s)) and pot((s)) tagging requirements.

     (a) It is unlawful to place in the water, pull from the water, possess on the water, or transport on the water any crab buoy or crab pot without an attached buoy and pot tag((s)) that meet((s)) the requirements of this subsection except as provided for in (b) of this subsection. Violation of this section is punishable under RCW 77.15.520.

     (b) Persons operating under a valid coastal gear recovery permit issued by the department may possess crab pots or buoys missing tags or bearing the tags of another license holder, provided that the permittee adheres to provisions of the permit.

     (((b))) (c) Coastal crab pot tags: Each shellfish pot used in the coastal Dungeness crab fishery must bear a tag that identifies either the name of the vessel being used to operate the pot or the Dungeness crab fishery license number of the owner of the pot, and the telephone number of a contact person.

     (((c))) (d) Puget Sound crab pot tags: In Puget Sound, all crab pots must have a durable, nonbiodegradable tag securely attached to the pot and permanently and legibly marked with the license owner's name or license number, and telephone number. If the tag information is illegible, or if the tag is lost for any reason, the pot is not in compliance with state law.

     (((d))) (e) Crab buoy tags: The department will issue crab pot buoy tags to the owner of each commercial crab fishery license upon payment of an annual buoy tag fee ((of seventy cents)) per crab pot buoy tag. Prior to setting gear, each Puget Sound crab license holder must purchase 100 tags, and each coastal crab fisher must purchase 300 or 500 tags, depending on the crab pot limit assigned to the license. Only department-issued crab buoy tags may be used, and each crab pot is required to have a buoy tag.

     (((e))) (f) Puget Sound replacement crab buoy tags: Additional tags to replace lost tags will only be issued to owners of Puget Sound commercial crab fishery licenses who obtain, complete, and sign a declaration under penalty of perjury in the presence of an authorized department employee. The declaration shall state the number of buoy tags lost, the location and date where the lost gear or tags were last observed, and the presumed cause of the loss.

     (((f))) (g) Coastal replacement crab buoy tags: Coastal crab license holders with a 300-pot limit will be able to replace up to fifteen lost tags by January 15th, up to a total of thirty lost tags by February 15th, and up to a total of forty-five lost tags after March 15th of each season. Coastal crab license holders with a 500-pot limit will be able to replace up to twenty-five lost tags by January 15th, up to a total of fifty lost tags by February 15th, and up to a total of seventy-five lost tags after March 15th of each season. In the case of extraordinary loss of crab pot gear, the department may, on a case-by-case basis, issue replacement tags in excess of the amount set out in this subsection. Replacement buoy tags for the coastal crab fishery will only be issued after a signed affidavit is received by the department.

     (8) No person can possess or use gear with ((other)) another person's crab pot tag or crab buoy tag. ((No)) It is unlawful for any person ((may)) to possess, use, control, or operate any crab pot not bearing a tag identifying the pot as that person's, or any buoy not bearing tags issued by the department to that person, except ((that)) under the following circumstances:

     (a) An alternate operator designated on a primary license may possess and operate crab buoys and crab pots bearing the tags of the license holder.

     (b) Persons operating under a valid coastal gear recovery permit issued by the department may possess crab pots or buoys bearing the tags of another license holder, provided that the permittee adheres to provisions of the permit.

     (c) Violation of this section is punishable under ESHB 1516.

     (9) ((Cannot)) No person can tamper with pot tags. ((No)) It is unlawful for any person ((shall)) to remove, damage, or otherwise tamper with crab buoy or pot tags except when lawfully applying or removing tags on the person's own buoys and pots. However, persons operating under a valid coastal gear recovery permit or emergency gear recovery permit, issued by the department and who adheres to the permit's provisions may possess crab pots or buoys bearing the tags of another license holder. Violation of this section is punishable under RCW 77.15.180 (3)(b).

     (10) ((Thirty-day period)) When it is unlawful to buy or land crab from the ocean without crab vessel inspection. It is unlawful for any fisher or wholesale dealer or buyer to land or purchase Dungeness crab taken from Grays Harbor, Willapa Bay, the Columbia River, or Washington coastal or adjacent waters of the Pacific Ocean during the first thirty days following the opening of a coastal crab season from any vessel ((which)) that has not been issued a Washington crab vessel inspection certificate. The certificate will be issued to vessels made available for inspection in a Washington coastal port and that are properly licensed for commercial crab fishing if no Dungeness crabs are ((aboard)) on board. ((Inspections will be performed by)) Authorized department personnel will perform inspections not earlier than twelve hours prior to the opening of the coastal crab season and during the following thirty-day period.

     (11) Grays Harbor pot limit of 200. It is unlawful for any person to take or fish for crab for commercial purposes in Grays Harbor (catch area 60B) with more than 200 shellfish pots in the aggregate. It shall be unlawful for any group of persons using the same vessel to take or fish for crab for commercial purposes in Grays Harbor with more than 200 shellfish pots.

     (12) Coastal crab pot limit.

     (a) It is unlawful for a person to take or fish for Dungeness crab for commercial purposes in Grays Harbor, Willapa Bay, the Columbia River, or waters of the Pacific Ocean adjacent to the state of Washington unless a ((shellfish)) crab pot limit has been assigned to the Dungeness crab((-))coastal fishery license held by the person, or to the equivalent Oregon or California Dungeness crab fishery license held by the person.

     (b) It is unlawful for a person to deploy or fish more shellfish pots than the number of shellfish pots assigned to the license held by that person, and it is unlawful to use any vessel other than the vessel designated on a license to operate or possess shellfish pots assigned to that license.

     (c) It is unlawful for a person to take or fish for Dungeness crab or to deploy ((shellfish)) crab pots unless the person is in possession of valid documentation issued by the department that specifies the ((shellfish)) crab pot limit assigned to the license.

     (13) Determination of coastal crab pot limits.

     (a) The number of ((shellfish)) crab pots assigned to a Washington Dungeness crab((-))coastal fishery license, or to an equivalent Oregon or California Dungeness crab fishery license will be based on documented landings of Dungeness crab taken from waters of the Pacific Ocean south of the United States/Canada border and west of the Bonilla-Tatoosh line, and from coastal estuaries in the states of Washington, Oregon, and California. Documented landings may be evidenced only by valid Washington state shellfish receiving tickets, or equivalent valid documents from the states of Oregon and California, ((that)) which show Dungeness crab were taken between December 1, 1996, and September 16, 1999. Such documents must have been received by the respective states no later than October 15, 1999.

     (b) The following criteria shall be used to determine and assign a ((shellfish)) crab pot limit to a Dungeness crab((-)) coastal fishery license, or to an equivalent Oregon or California Dungeness crab fishery license:

     (i) The three "qualifying coastal Dungeness crab seasons" are from December 1, 1996, through September 15, 1997((,)); from December 1, 1997, through September 15, 1998((,)); and from December 1, 1998, through September 15, 1999. Of the three qualifying seasons, the one with the most poundage of Dungeness crab landed on a license shall determine the crab pot limit for that license. A crab pot limit of 300 shall be assigned to a license with landings that total from zero to 35,999 pounds and a crab pot limit of 500 shall be assigned to a license with landings that total 36,000 pounds of crab or more.

     (ii) Landings of Dungeness crab made in the states of Oregon or California on valid Dungeness crab fisheries licenses during a qualifying season may be used for purposes of assigning a ((shellfish)) crab pot limit to a Dungeness crab fishery license, provided that documentation of the landings is provided to the department by the Oregon Department of Fish and Wildlife and/or the California Department of Fish and Game. Landings of Dungeness crab made in Washington, Oregon, and California on valid Dungeness crab fishery licenses during a qualifying season may be combined for purposes of assigning a ((shellfish)) crab pot limit, provided that the same vessel was named on the licenses, and the same person held the licenses. A ((shellfish)) crab pot limit assigned as a result of combined landings is invalidated by any subsequent split in ownership of the licenses. No vessel named on a Dungeness crab fishery license shall be assigned more than one ((shellfish)) coastal crab pot limit.

     (14) Appeals of coastal crab pot limits. An appeal of a ((shellfish)) crab pot limit by a coastal commercial license holder shall be filed with the department on or before October 18, 2001. The shellfish pot limit assigned to a license by the department shall remain in effect until such time as the appeal process is concluded.

     (15) Coastal - Barging of crab pots by undesignated vessels. It is ((lawful)) unlawful for a vessel not designated on a Dungeness crab((-))coastal fishery license to be used to deploy ((shellfish)) crab pot gear ((provided that)) except as prescribed below:

     (a) Such a vessel may not carry ((aboard)) on board more than 250 ((shellfish)) crab pots at any one time.

     (b) Such a vessel may deploy ((shellfish)) crab pot gear only during the 64-hour period immediately preceding the season opening date and during the 48-hour period immediately following the season opening date.

     (c) The ((lawful owner)) primary or alternate operator of the ((shellfish)) crab pot gear named on the license associated with the gear must be ((aboard)) on board the vessel when the gear is being deployed. Violation of this section is punishable under RCW 77.15.500.

     (16) Coastal crab buoys - Registration and use of buoy brands and colors.

     (a) It is unlawful for any coastal Dungeness crab fishery license holder to fish for crab unless the license holder has registered the buoy brand and buoy color(s) to be used with the license. A license holder shall be allowed to register with the department only one, unique buoy brand and one buoy color scheme per license. Persons holding more than one state license ((state)) shall register buoy color(s) for each license that are distinctly different. The buoy color(s) shall be shown in a color photograph. Violation of this section is punishable under RCW 77.15.520.

     (b) It is unlawful for a coastal Dungeness crab fishery license holder to fish for crab using any other buoy brand or color(s) than those registered with and assigned to the license by the department. Violation of this section is punishable under RCW 77.15.520.

[Statutory Authority: RCW 77.12.047. 07-23-090 (Order 07-285), § 220-52-040, filed 11/20/07, effective 12/21/07; 05-21-068 (Order 05-246), § 220-52-040, filed 10/14/05, effective 11/14/05; 01-20-066 (Order 01-219), § 220-52-040, filed 9/28/01, effective 10/29/01; 01-18-005 (Order 01-180), § 220-52-040, filed 8/22/01, effective 9/22/01; 01-11-009 (Order 01-74), § 220-52-040, filed 5/3/01, effective 6/3/01; 00-18-005 (Order 00-164), § 220-52-040, filed 8/23/00, effective 9/23/00. Statutory Authority: RCW 75.08.080. 98-19-012 (Order 98-185), § 220-52-040, filed 9/4/98, effective 10/5/98; 98-05-043, § 220-52-040, filed 2/11/98, effective 3/14/98; 97-08-052 (Order 97-55), § 220-52-040, filed 3/31/97, effective 5/1/97; 94-12-009 (Order 94-23), § 220-52-040, filed 5/19/94, effective 6/19/94; 91-10-024 (Order 91-22), § 220-52-040, filed 4/23/91, effective 5/24/91; 85-01-010 (Order 84-214), § 220-52-040, filed 12/7/84; 84-08-014 (Order 84-24), § 220-52-040, filed 3/27/84; 83-01-026 (Order 82-221), § 220-52-040, filed 12/8/82; 80-13-064 (Order 80-123), § 220-52-040, filed 9/17/80; 79-02-053 (Order 79-6), § 220-52-040, filed 1/30/79; Order 77-145, § 220-52-040, filed 12/13/77; Order 76-152, § 220-52-040, filed 12/17/76; Order 76-26, § 220-52-040, filed 1:45 p.m., 4/20/76; Order 1045, § 220-52-040, filed 3/8/73; Order 807, § 220-52-040, filed 1/2/69, effective 2/1/69; subsections 1, 5, 6, from Orders 409 and 256, filed 3/1/60; subsection 2 from Orders 500 and 256, filed 3/1/60; subsection 3 from Order 528, filed 6/1/61; Order 525, filed 5/3/61; Order 507, filed 4/8/60; Orders 409 and 256, filed 3/1/60; subsection 4 from Order 528, filed 6/1/61; Order 525, filed 5/3/61; Orders 409 and 256, filed 3/1/60; subsection 7 from Orders 414 and 256, filed 3/1/60; subsection 8 from Orders 410 and 256, filed 3/1/60; subsection 9 from Order 409, filed 9/14/56.]

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