WSR 14-21-173

PROPOSED RULES

[Filed October 22, 2014, 9:25 a.m.]

Preproposal statement of inquiry was filed as WSR 14-17-119 on August 20, 2014.

Title of Rule and Other Identifying Information: This proposed rule making involves additional state sorting requirements for slope rockfish. The proposal includes amendments to WAC 220-44-050 and 220-69-230 to (1) clarify existing requirements and add new requirements regarding how certain fish species delivered into the state are reported on fish receiving tickets, and (2) update contact information for obtaining federal regulations incorporated by reference in state regulation for coastal bottomfish/groundfish.

Hearing Location(s): Washington Department of Fish and Wildlife (WDFW), Region 6, Small Conference Room, 48 Devonshire Road, Montesano, WA 98563, on November 25, 2014, at 10:00 a.m. to 12:00 noon.

Date of Intended Adoption: On or after November 25, 2014.

Submit Written Comments to: Corey Niles, Coastal Marine Policy Lead, WDFW, Region 6 Headquarters, 48 Devonshire Road, Montesano, WA 98563, e-mail Corey.Niles@dfw.wa.gov, fax (360) 249-1299, by November 18, 2014.

Assistance for Persons with Disabilities: Contact Tami Lininger by November 18, 2014, TTY (800) 833-6388, or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Federal regulations for 2015 will require individual reporting of landings of Shortraker Rockfish (Sebastes borealis) and Rougheye Rockfish (Sebastes aleutianus)/Blackspotted Rockfish (Sebastes melanostictus). Fish buyers currently report landings of these species on fish receiving tickets under a "slope rockfish" market category that can also include a number of other species. WDFW proposes rule amendments to supplement the new federal requirement by requiring individual reporting of the remaining slope rockfish.

Reasons Supporting Proposal: WDFW samples a portion of landings of slope rockfish to tally the species specific composition of the market category using a statistical sampling design. These species specific proportions are applied to all landings into the slope rockfish category to produce estimates of landed catch by species for all fish reported on fish receiving tickets as slope rockfish. The three species to be newly sorted in 2015 by federal regulations make up a substantial portion of the slope rockfish landings into Washington. With their removal, the market category will include fewer and less frequently seen species and the current statistical sampling approach may become impractical or inefficient. Sorting by fishery participants and buyers is needed to produce accurate accounting of landings for the remaining slope rockfish species.

Statutory Authority for Adoption: RCW 77.04.012, 77.04.020, 77.04.055, 77.04.090, 77.15.045 [77.12.045], and 77.12.047.

Statute Being Implemented: RCW 77.04.012, 77.04.020, 77.04.055, 77.04.090, 77.15.045 [77.12.045], and 77.12.047.

Name of Proponent: WDFW, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Corey Niles, 48 Devonshire Road, Montesano, WA 98563, (360) 902-2938; and Enforcement: Chief Steve Crown, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2373.

1. Background and Description of the Requirements of the Proposed Rule: Commercial fishers bringing their catch into Washington must report their deliveries on a fish receiving ticket (WAC 220-69-215 and 220-69-241). This reporting duty also applies to individuals who first purchase or receive the delivery (WAC 220-69-240). Many commercial fish deliveries will include several species of fish that are identified on fish receiving tickets by species or by a market category that combines multiple species. For each species or market category, the primary information recorded on the receiving tickets includes the total weight of the fish (or number of fish for certain species) and the price paid by the purchaser.

For commercial deliveries of bottomfish (a.k.a. groundfish), the state requires the species and market categories reported on fish receiving tickets to be consistent with the Pacific Fishery Management Council's (PFMC) Pacific Coast Groundfish Fishery Management Plan and related regulations (WAC 220-69-230 [(2)](u) and 220-44-050). These species and species groups derive from those that the PFMC uses when setting annual allowable catch levels ("harvest specifications"), creating management measures designed to keep catches within desired levels, or establishing sorting designations that are intended to aid in the tracking of landed catch.

This rule making focuses on one of the PFMC's current species categories, the slope rockfish market category/stock complex (see #8 below). The slope rockfish species group combines several species of the genus Sebastes that were originally grouped together because of their similarity of appearance and the assumption that they are likely to be caught together. In 2015, federal regulations will change to require the following three species currently landed into the slope rockfish market category to be sorted out: Rougheye Rockfish (Sebastes aleutianus), Blackspotted Rockfish (Sebastes melanostictus), and Shortraker Rockfish (Sebastes borealis). Rougheye rockfish and blackspotted rockfish are very closely related species and very difficult to tell apart visually. The federal regulations will therefore require the two to be landed and reported together in a rougheye/blackspotted species group. This new federal requirement will affect three main fishing vessel types: Bottom trawl, midwater trawl vessels targeting Pacific Whiting (Merluccius productus), and fixed gear "hook and line" vessels that primarily target Sablefish (Anoplopoma fimbria).

The PFMC recommended the pending federal regulations to improve confidence in the accuracy of landings data of the three species listed above into Washington, Oregon, and California. As part of this rule making, the department proposes additional sorting requirements - ranging from sorting all slope rockfish species to sorting one additional species - out of concern that the federal regulatory change will adversely impact the accuracy of the state's landings records for the remaining slope rockfish, or potentially render current methods for tracking landings inefficient.

The difficulty in differentiating the slope rockfish species is a major motivating factor in requiring landings be made into a market category instead of by species. Fish receiving tickets are self-reported, and for much of the groundfish fishery's history, they have not been verified on every landing. If species are difficult to distinguish from one another, then commercial fishers and buyers are more likely to misidentify and misreport landings, thereby reducing the accuracy of the data. Maintaining accurate data on fish landings is fundamental for several purposes, including the core assessments of a fishery's sustainability, collecting state revenues on fish landings, allocating allowable catches among fishery sectors or individuals, and various other conservation and management purposes.

To reduce inaccuracies caused by species misidentification, the department uses expert biologists to sample certain landings of slope rockfish using a statistical sampling design. These samples are then used to estimate species specific landings amounts for all landings into the slope rockfish market category. The estimates are specific to gear type and port of delivery and combine all samples collected over a three-month period (i.e. by quarter). In general, the department expects the sampling program will produce sufficiently accurate estimates if the samples taken represent the unsampled landings, and if the percentage of landings covered are adequate. Adequate coverage depends on the frequency and variability of landings. Accurate estimates for more rarely and infrequently landed species generally require higher coverage levels.

The department is evaluating how the removal of rougheye rockfish, shortraker rockfish, and blackspotted rockfish from the slope rockfish market category might affect sampling coverage levels. These three species make up a significant proportion of the slope rockfish landings into the state. The specific concerns with removing the three species from the market category include: (1) Potential negative impacts to the department's sampling program by requiring samplers to spend substantial time on quality control of the new sorting categories; and (2) that remaining slope rockfish may arrive in more sporadic and smaller volumes making it more difficult to obtain adequate sampling coverage. Moreover, the remaining volumes of slope rockfish may be small enough for commercial fishers and fish buyers to handle more efficiently than can be done with a sampling approach.

The department will be closely considering these issues of sampling efficiency together with the potential impacts to commercial fishers and fish buyers before moving forward with additional sorting requirements.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: The department does not anticipate the proposed requirements will increase the professional services needed by small businesses. Commercial fishing crews, fish buyers and other seafood processing workers must already identify and sort several species of rockfish and other groundfish. Existing fishing vessel crews and processing plant employees can learn to identify the various slope rockfish species with additional training. The pending new federal requirements for rougheye rockfish, blackspotted rockfish, and shortraker rockfish will already require such training.

Over seventy percent of slope rockfish landed into the state are made by vessels participating in the PFMC individual fishing quota program. Federal observers or catch monitors are present for deliveries of groundfish made under this program and would be available to help with species identification. The department's port samplers and other staff have helped fishing and processing operations with species identification training in the past and will continue to do so.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: Any increase in costs would come from the increased time it takes to handle and identify the additional species requiring sorting. The department's proposed sorting requirements would be unlikely to substantially increase the costs of compliance above what will be involved with the new federal sorting requirements. Rougheye rockfish, blackspotted rockfish, and shortraker rockfish are present in seventy-eight percent of hook and line landings of slope rockfish and thirty-three percent of trawl landings. When present, they make up seventy-eight percent of slope rockfish landings on average for hook and line gears and sixty-seven percent for trawl landings when present. This suggests that the new federal requirement will require increased handling of what are now slope rockfish landings, especially for hook and line vessels.

No economic surveys on the costs associate with the sorting of rockfish species are available. In addition to the increased handling time, fishing crews and buying operations may have to alter their workspaces to handle and track the additional species and species categories. However, these impacts may occur regardless of whether the department adopts these proposed changes due to the pending federal regulatory changes. Additionally, the department anticipates increased costs from additional sorting requirements (whether federal or state) will be minimal in general as slope rockfish landings are a small percentage of the fish handled on a typical landing in terms of the total volume received. From 2011 to 2013, slope rockfish landings, on average, accounted for only 1.1 percent of bottom trawl landings, 0.2 percent of midwater trawl landings, and 4.7 percent of fixed gear (hook and line and pot) landings. The department encourages comment from affected fishing vessel and fish buying/processing operations on potential cost impacts and will strongly consider adverse effects to costs when deciding whether to implement the proposed requirements.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? The proposed requirements will not affect the marketability of slope rockfish, thus the department does not expect the changes to lead to any losses in sales or revenues. It is possible that fishing vessel operators may choose to land their slope rockfish into Oregon or California instead of Washington if the sorting requirements are viewed as too burdensome. If so, this would affect the revenues of Washington fish buyers. Likewise, more restrictive sorting requirements may affect the decisions of existing fish buyers to move to or new buyers to start up in another state. The department assumes that the additional costs associated with sorting are minor relative to the other costs and revenues associated with running or choosing to start seafood buying or processing businesses.

Again, without economic data available, the department strongly encourages feedback and comments from commercial fishers and fish buyers on how sales or revenues might be affected by these potential changes. As with costs, the department will strongly consider any adverse effects on sales or revenues in deciding whether to implement the proposed requirements.

As discussed above, the added costs of complying with the proposed changes over and above the cost of compliance with the new federal sorting requirements are difficult to identify but are not expected to be substantial. Since 2011, the top ten percent of businesses receiving slope rockfish consists of three fish processors. The average slope rockfish received by these buyers is seventeen metric tons per year over 2011 to 2013. This equates to an average of one percent of all commercial fish received by this business and roughly four percent of all groundfish species. The department therefore expects the proposed requirements to affect a small portion of the overall product flow of these businesses, especially considering that the pending federal sorting requirements will already cause these businesses to spend more time handling landings of rougheye rockfish and shortraker rockfish.

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 has supported past implementations of new sorting requirements with education and outreach on how to correctly identify and sort species and will undertake them again for the new federal sorting requirements and the additional sorting requirements proposed here if implemented. This support should result in easier species identification and thereby reduce some costs to affected small businesses.

Since the impending federal regulatory changes will already increase sorting requirements, and the costs associated with the additional requirements contemplated in this proposal are marginal in addition to the new federal requirements, there are no other steps the agency could take to accomplish the potential rule changes at a reduced cost.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The PFMC is a public process in which the department actively participates and that allows for significant participation by small businesses and the public through written comment, participation on advisory bodies, and providing spoken testimony. The issue of slope rockfish sorting has been addressed at the PFMC multiple times over the past few years and the department has received some feedback through that process. For this rule making, the department will reach out to the affected business and consider all written and verbal comments (as required by chapter 34.05 RCW) before deciding to implement the requirements. Over the past three years, ninety-nine percent of the slope rockfish landings were received by ten businesses. This small number will facilitate the department in its efforts to work directly with the most affected business for their input.

8. A List of Industries That Will Be Required to Comply with the Rule: As highlighted above, the proposed requirements would affect commercial fishers delivering and initial purchasers or receivers of the slope rockfish species managed under the PFMC Pacific Coast Groundfish Fishery Management Plan and related regulations. These regulations currently define the following as slope rockfish:

As mentioned above, the proposed change would be expected to affect three main fishing vessel types: Bottom trawl, midwater trawl vessels targeting Pacific whiting, and fixed gear "hook and line" vessels fishing primarily for sablefish. The commercial fishers and fish buyers delivering and receiving slope rockfish since 2011 operate mainly out of the Columbia River ports of Ilwaco, Chinook, Westport, Neah Bay, and Bellingham.

A copy of the statement may be obtained by contacting Corey Niles, Coastal Marine Policy Lead, WDFW, Region 6 Headquarters, 48 Devonshire Road, Montesano, WA 98563, phone (360) 249-1223, fax (360) 249-1299, e-mail Corey.Niles@dfw.wa.gov.

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

October 22, 2014

Joanna M. Eide

Rules Coordinator