WSR 14-06-110

PROPOSED RULES

[Filed March 5, 2014, 11:18 a.m.]

Preproposal statement of inquiry was filed as WSR 14-02-114 on December 31, 2013.

Title of Rule and Other Identifying Information: WAC 220-49-005 Puget Sound forage fish—Definitions—General provisions, 220-49-011 Herring, anchovy and smelt fishing—Lawful gear—Drag seine, 220-49-012 Herring, anchovy and smelt fishing—Purse seine, 220-49-013 Herring, anchovy and smelt fishing—Dip bag net, 220-49-056 Smelt fishing—Seasons, 220-49-057 Smelt fishing—Weekly periods, 220-56-107 Fishing hours, and 220-56-270 Smelt—Areas and seasons.

Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on April 11-12, 2014, at 8:30 a.m.

Date of Intended Adoption: On or after June 13, 2014.

Submit Written Comments to: Craig Burley, 600 Capitol Way North, Olympia, WA 98501, e-mail Craig.Burley@dfw.wa.gov, fax (360) 902-2943, by April 4, 2014.

Assistance for Persons with Disabilities: Contact Tami Lininger by April 2, 2014, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal addresses smelt harvest in Puget Sound and explores rule changes to reduce recreational and commercial smelt harvest. Three options are proposed: (1) No changes to the rules; (2) closure of the commercial fishery on Sundays and from 10:00 p.m. to 6:00 a.m. during open seasons, as well as closure of the recreational dip net fishery from 10:00 p.m. to 6:00 a.m.; and (3) complete closure of the commercial fishery and closure of the recreational dip net fishery from 10:00 p.m. to 6:00 a.m. Additionally, under both Options 2 and 3, inactive commercial purse seine and dip bag net fisheries in Puget Sound are permanently closed. Under Options 2 and 3, commercial smelt harvest is expected to decrease from forty - one hundred percent. Recreational harvest will decrease with the night closure, but the degree of this decrease cannot be predicted as the recreational fishery is not currently monitored. A creel survey at one location in 2012 suggests the night closure could reduce harvest by as much as eleven percent at one high-use site.

• Option 1 - No change. Under current state rules, commercial fishing for smelt in Puget Sound is open from 8 a.m. Sunday to 8 a.m. Friday during seasonal openings. Recreational smelt fishing is open year-round, except in Hood Canal where it is closed. The use of dip nets is allowed from 8 a.m. Friday to 8 a.m. Wednesday. Jig gear can be used seven days per week.

• Option 2 - Reduce both commercial and recreational use. Reduce both commercial and recreational use: Commercial smelt fishing would be closed Sundays and would be allowed only from 6 a.m. to 10 p.m. Monday through Thursday during seasonal openings in each area. Inactive commercial smelt fisheries, including dip bag and purse seine, which have not been in use for at least ten years, would be closed. Recreational smelt fishing would be closed overnight except for the use of jig gear, which could be used seven days per week. Dip nets would be allowed for recreational use from 6 a.m. to 10 p.m. Friday through Tuesday.

• Option 3 - Close commercial fishing, reduce recreational use. Close commercial fishing, reduce recreational use: All commercial fishing for smelt in Puget Sound would be closed. Recreational smelt fishing would be closed overnight except for the use of jig gear, which could be used seven days per week. Dip nets would be allowed for recreational use from 6 a.m. to 10 p.m. Friday through Tuesday.

Reasons Supporting Proposal: Reducing smelt harvest will leave more forage fish in the water for consumption by other species in marine and terrestrial ecosystems within and adjacent to Puget Sound. In lieu of detailed knowledge about the abundance and distribution of surf smelt, Options 2 and 3 represent a precautionary, conservative approach to management.

Statutory Authority for Adoption: RCW 77.04.012, 77.04.013, 77.04.055, and 77.12.047.

Statute Being Implemented: RCW 77.04.012, 77.04.013, 77.04.055, and 77.12.047.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: WDFW is also accepting comments on the proposed rule changes online. Members of the public may comment using the online form at http://wdfw.wa.gov/fishing/regulations/smelt/.

Name of Proponent: WDFW, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Craig Burley, 1111 Washington Street S.E., Olympia, WA, (360) 902-2784; and Enforcement: Steven Crown, Chief, 1111 Washington Street S.E., Olympia, WA, (360) 902-2373.

1. Description of the Reporting, Recordkeeping and Other Compliance Requirements of the Proposed Rules: The proposed rule changes will affect the commercial smelt fishing industry within Puget Sound. There are three distinct alternatives being proposed:

1. Status quo, which would not result in any changes to the fishery.

2. A reduction in fishery opportunity by closing the fishery on Sunday, and limiting harvest during all open days to hours between 6 a.m. and 10 p.m.

3. Closing commercial smelt fishing in Puget Sound entirely.

Throughout this statement, the alternatives will be referred to as Options 1, 2, and 3, respectively. The analysis is based on fishery performance from 2004-13, the most recent decade for which complete data are available.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: No additional professional services would be needed by a small business to comply with the proposed fishery changes under any of the options.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor and Increased Administrative Costs: None of the options should result in additional costs to small businesses.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Options 2 and 3 will result in lost profits for small businesses. Option 2 is projected to reduce fishery harvest by nearly forty percent, with an anticipated loss of forty percent of revenue. This may not be the case if the market price of smelt increases due to decreased supply, which would result in profit losses of less than forty percent.

Option 3 would result in complete loss of income for fishers and marketers who specialize in smelt and do not profit from the sale of any other species.

The agency selected option (c) to compute costs of compliance.

Option 1 would result in no costs to businesses.

Option 2 would cost $40 per $100 of sales, assuming that availability of marketable product decreases forty percent but all other costs, and the price per pound of fish, remain stable.

Option 3 would result in a complete loss of profits, or $100 per $100 of sales.

Now compare the largest businesses' cost of compliance with the cost of compliance for small businesses. Will this rule have a disproportionate impact on small businesses? No, all businesses involved in this fishery are small businesses.

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 considered an array of rule change options ranging from partial to complete impacts on smelt fisheries. While decreased harvest for conservation purposes was the goal, consideration was given to perpetuation of the fishery.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The agency sent a letter to known participants of the affected fisheries on January 23, 2014. On January 30, 2014, WDFW held a meeting on the potential changes and invited all participants of the affected fisheries. A web page was created to solicit additional comments from participants, as well as members of the public. An additional open public meeting will be held on March 21, 2014, and an opportunity to provide written and oral comments on the proposed rule changes will occur at the April fish and wildlife commission meeting on April 11-12, 2014.

8. A List of Industries That Will Be Required to Comply with this Rule: All fishers participating in the Puget Sound commercial smelt fishery will be required to comply with changes to the rules.

9. An Estimate of the Number of Jobs That Will Be Created or Lost as the Result of Compliance with the Proposed Rule: Only Option 3 is anticipated to have an impact on jobs associated with this fishery. A complete closure of the fishery could result in as many as seven lost jobs. However, some fishers may turn to the exploitation of other species, resulting in no loss of jobs.

A copy of the statement may be obtained by contacting Dayv Lowry, 1111 Washington Street S.E., 6th Floor, Olympia, WA 98501, phone (360) 902-2558, fax (360) 902-2943, e-mail dayv.lowry@dfw.wa.gov.

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

March 5, 2014

Joanna M. Eide

Rules Coordinator

The following section of the Washington Administrative Code is repealed: