Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-20-034.

     Title of Rule and Other Identifying Information: WAC 220-52-068 Scallop fishery -- Coastal waters -- Outlaw use of dredge gear.

     Hearing Location(s): Washington Department of Fish and Wildlife, Region Six Office, 48 Devonshire Road, Montesano, WA 98563, on January 5, 2010, at 9:00 a.m.

     Date of Intended Adoption: On or after January 6, 2010.

     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 January 1, 2010.

     Assistance for Persons with Disabilities: Contact Dan Ayres by January 4, 2010, TTY (360) 902-2207 or (360) 249-4628 ext. 209.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: State laws and rules can be more restrictive than their federal counterparts, but not less restrictive. WAC 220-52-068 requires the use of scallop dredge gear to harvest scallops in the coastal fishery. This conflicts with National Marine Fisheries Service regulation, 50 C.F.R. Part 660.306, prohibiting the use of dredge gear in groundfish essential fish habitat (EFH). Specifically, dredge gear is prohibited from high tide out to two hundred miles, which coincides with where groundfish EFH occurs. The department wants to amend WAC 220-52-068 to make it consistent with federal rules.

     Reasons Supporting Proposal: WAC 220-52-068 is not consistent with federal rules. Amending WAC 220-52-068 eliminates the inconsistency.

     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 necessary because of federal law, 50 C.F.R. Part 660.306.

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

     Name of Agency Personnel Responsible for Drafting: Dan Ayres, 48 Devonshire Road, Montesano, WA 98563, (360) 249-4628; Implementation: Jim Scott, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2651; and Enforcement: Chief Bruce Bjork, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2373.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This activity has been prohibited federally for a few years, so these changes will not impact small businesses.

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

November 30, 2009

Lori Preuss

Rules Coordinator

OTS-2848.1

AMENDATORY SECTION(Amending Order 00-165, filed 8/22/00, effective 9/22/00)

WAC 220-52-068   Scallop fishery -- Coastal waters.   (1) It is unlawful to fish for or possess scallops taken for commercial purposes from the waters of the Exclusive Economic Zone ((except as provided for in this section.

     (1) Season: July 1 through November 30 in the waters of the Exclusive Economic Zone)).

     (2) It is unlawful to trawl for scallops in Washington territorial waters west of the Bonilla-Tatoosh line or in Marine Fish-Shellfish Management and Catch Reporting Area 29.

     (((2) Gear: Only scallop dredge gear may be used. Scallop dredge gear may not exceed fifteen feet in width per unit of gear and must have three inch or larger net mesh or rings throughout. Scallop dredges may not use a dredge liner nor have chaffing gear covering any portion of the top half of the dredge.

     (3) Licensing: A shrimp trawl -- non-Puget Sound fishery license is the license required to operate the gear provided for in this section.

     (4) Incidental catch: It is unlawful to retain food fish or shellfish taken incidental to any lawful scallop fishery, except that it is lawful to retain octopus and squid.)) (3) A violation of this section is punishable under RCW 77.15.520 Commercial fishing -- Unlawful gear or methods -- Penalty; and RCW 77.15.550 Violation of commercial fishing area or time -- Penalty.

[Statutory Authority: RCW 77.12.047. 00-17-145 (Order 00-165), § 220-52-068, filed 8/22/00, effective 9/22/00. Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), § 220-52-068, filed 5/19/94, effective 6/19/94; 93-15-051, § 220-52-068, filed 7/14/93, effective 8/14/93.]

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