WSR 97-24-084

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

(Fisheries)

[Filed December 2, 1997, 4:30 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-19-094.

Purpose: Modify commercial fishing rules of baitfish in Washington.

Statutory Authority for Adoption: RCW 75.08.080.

Statute Being Implemented: RCW 75.08.080.

Summary: Change the term "baitfish" to "forage fish," restrict commercial fishing for pilchards, close San Juan Islands to fishing for herring, prohibit the use of sandlance and smelt as food for zoo animals, increase smelt fishing opportunities in Fidalgo Bay.

Reasons Supporting Proposal: Agency stock assessment data, forage fish management plan.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, 902-2930; Implementation: Bruce Crawford, 1111 Washington Street, Olympia, 902-2325; and Enforcement: Ron Swatfigure, 1111 Washington Street, Olympia, 902-2927.

Name of Proponent: Washington Department of Fish and Wildlife, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Changes the term "baitfish" to "forage fish" for clarity. Prohibits the use of smelt and candlefish as food for zoo animals to conserve fish stocks, closes the San Juan Islands to most commercial fishing for herring (except for dipbag net) to conserve a declining stock, increase commercial fishing seasons in Fidalgo Bay due to increasing smelt populations. Restructure the commercial fishing regulations of pilchards (sardines) to prepare for increased fishing opportunities in the near future as new fisheries are established on this rebuilt stock.

Proposal Changes the Following Existing Rules: The following sections of chapter 220-49 WAC are changed: WAC 220-49-005, 220-49-011, 220-49-012, 220-49-013, 220-49-014, 220-49-015, 220-49-016, 220-49-021, and 220-49-056.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Commercial baitfish rules: WAC 220-49-005, 220-49-011, 220-49-012, 220-49-013, 220-49-014, 220-49-015, 220-49-016, and 220-49-020.

1. Description of Reporting, Recordkeeping and Other Compliance Measures Required by Proposal: None.

2. Professional Services Required for Compliance: None.

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

4. Will Compliance Cost Businesses to Lose Sales or Revenue? No.

5. Comparison of Costs for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rules: No additional costs.

6. Steps Taken by Agency to Reduce the Costs of the Rule on Small Businesses: No additional costs.

7. Description of How the Agency will Involve Small Businesses in Rule Development: A public workshop on the proposed rules is scheduled for December and a public hearing is scheduled for January 23-24.

8. List of Industries Required to Comply with the Proposed Rules: Commercial herring fishers, commercial smelt fishers and zoos.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501, phone (360) 902-2930, or FAX

(360) 902-2944.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Not hydraulic rules.

Hearing Location: Maple Hall, 108 Commercial Street, La Conner, WA on January 23-24, 1998, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Robin Ayers by January 8, 1998, TDD (360) 902-2295, or (360) 902-2933.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, 98501, FAX (360) 902-2940, by January 14, 1998.

Date of Intended Adoption: January 24, 1998.

December 2, 1997

Evan Jacoby

Rules Coordinator

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-005 Puget Sound ((baitfish)) forage fish--Definitions--General provisions. (1) It is unlawful to fish for or possess Puget Sound ((baitfish)) forage fish taken for commercial purposes except at the times, during the seasons and using the gear provided for in this chapter. (("Baitfish" as used in this chapter means herring, candlefish (or sandlance), anchovy, pilchard (or Pacific sardine) and smelt.))

(2) It is unlawful to fish for or possess candlefish taken for commercial purposes.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-005, filed 5/19/94, effective 6/19/94.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-011 Herring, ((candlefish,)) anchovy((, pilchard)) and smelt fishing--Lawful gear--Drag seine. (1) Lawful drag seine gear in the Puget Sound herring((, candlefish)), anchovy((, pilchard)) and smelt fisheries shall not exceed 350 feet in length or contain meshes less than 1/2 inch stretch measure.

(2) Licensing:

(a) A food fish drag seine fishery license is a license required to operate the gear provided for in this section and allows the operator to retain ((baitfish other than herring)) smelt and anchovy.

(b) A herring drag seine fishery license is a license required to operate the gear provided for in this section and allows the operator to retain herring.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-011, filed 5/19/94, effective 6/19/94; Order 1105, 220-49-011, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-012 Herring((, candlefish)), anchovy((, pilchard)) and smelt fishing--Purse seine. (1) Lawful purse seine gear in the Puget Sound herring((, candlefish,)) and anchovy((, and pilchard)) fisheries shall not exceed 600 feet in length or contain meshes less than 1/2-inch stretch measure unless otherwise authorized by permit from the director.

(2) Lawful purse seine gear in the Puget Sound smelt fishery shall not exceed 350 feet in length nor contain meshes less than 1/2 inch stretch measure.

(3) Licensing:

(a) A baitfish purse seine fishery license is a license required to operate the gear provided for in this section and allows the operator to retain ((baitfish other than herring)) smelt and anchovy.

(b) A herring purse seine fishery license is a license required to operate the gear provided for in this section and allows the operator to retain herring.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-012, filed 5/19/94, effective 6/19/94; Order 76-148, 220-49-012, filed 12/2/76; Order 1105, 220-49-012, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-013 Herring((, candlefish)), anchovy((, pilchard)) and smelt fishing--Dip bag net. (1) Lawful dip bag net gear in the Puget Sound herring((, candlefish,)) and anchovy((, and pilchard)) fisheries shall not exceed 18 square feet. Lawful dip bag net gear in the Puget Sound smelt fishery shall not exceed 36 inches across the frame.

(2) Licensing:

(a) A smelt dip bag net fishery license is a license required to operate the gear provided for in this section and allows the operator to retain smelt and ((other baitfish other than herring)) anchovy.

(b) A herring dip bag net fishery license is a license required to operate the gear provided for in this section and allows the operator to retain herring.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-013, filed 5/19/94, effective 6/19/94; Order 1105, 220-49-013, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-014 Herring((, candlefish)), anchovy((, pilchard)) and smelt fishing--Lampara. (1) Lawful lampara gear in the Puget Sound herring((, candlefish,)) and anchovy((, and pilchard)) fisheries shall not exceed 200 feet in length or contain meshes less than 1/2-inch stretch measure. Lampara gear is not lawful gear for taking smelt in Puget Sound.

(2) Licensing:

(a) A baitfish lampara fishery license is a license required to operate the gear provided for in this section and allows the operator to retain ((baitfish other than smelt or herring)) anchovy.

(b) A herring lampara fishery license is a license required to operate the gear provided for in this section and allows the operator to retain herring.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-014, filed 5/19/94, effective 6/19/94; Order 77-14, 220-49-014, filed 4/15/77; Order 1105, 220-49-014, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-017 Herring((, candlefish)), anchovy((, pilchard)) and smelt fishing--Otter trawl and gill net. (1) It is unlawful to fish for herring((, candlefish)), anchovy((, pilchard)) or smelt using otter trawl gear or gill net gear except as authorized by permit issued by the director.

(2) Licensing: The permit issued by the director will specify the fishery license required to operate the permit.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-017, filed 5/19/94, effective 6/19/94; 89-14-010 (Order 89-48), 220-49-017, filed 6/22/89; Order 1105, 220-49-017, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 95-166, filed 11/8/95, effective 12/9/95)

WAC 220-49-020 Herring((, candlefish,)) and anchovy ((and pilchard))--Seasons--Lawful gear--Purposes. It shall be unlawful to take, fish for or possess for commercial purposes herring((, candlefish,)) or anchovy ((or pilchards)) in Puget Sound except during lawful seasons, with lawful gear and for such purposes as provided for hereinafter in each respective fishing area:

(1) Area((s)) 20A((, 20B, 21A, and 21B)).

(a) Closed September 1 through May 31 to all commercial fishing gear except for the spawn on kelp fishery as provided for in WAC 220-49-063.

(b) ((Open)) Closed June 1 through August 31 ((with drag seine, purse seine, lampara, and)) to all commercial fishing gear except dip bag net ((for bait and human consumption only)).

(2) It is unlawful to use purse seine gear in any Puget Sound area except ((22A, 22B,)) 23A, 23B, 23C, 23D, and 29. ((Areas 22A and 22B are open the entire year to purse seine gear, except for closures set out in subsections (4) and (5) of this section.)) Areas 23A, 23B, 23C, 23D and 29 are open to purse seine gear the entire year.

(3) All other Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas - Open entire year with drag seine, lampara, and dip bag net for human consumption or bait only except for closures set out in subsections (4), (5) and (6) of this section.

(4) The following areas are closed the entire year to all gear except dip bag net gear:

(a) ((Waldron Island - Waters of Cowlitz Bay inside of a line from Sandy Point to Point Disney, and the small bay on the east side of the island.)) Areas 20B, 22A and 22B.

(b) ((Stuart Island - Waters of Reid Harbor.

(c))) Swinomish Channel - Waters between the bridge spanning the channel south of La Conner and a line perpendicular to the channel at the northeast end of the La Conner boat basin.

(5) The following areas are closed from January 16 through April 15, except to dip bag net gear:

(a) ((Central San Juan Islands - Waters of Area 22A south of a line from Limestone Point on San Juan Island to Steep Point on Orcas Island, north of a line from Pear Point on San Juan Island to Rock Point on Lopez Island, west of a line projected true south from Deer Point on Orcas Island to landfall on Blakely Island, west of a line projected true north from Fauntleroy Point on Decatur Island to landfall on Blakely Island, and west of a line projected true south from the Lopez Pass navigation light on south Decatur Island to landfall on Lopez Island. Notwithstanding the provisions of this subsection, the following waters are open to purse seine and lampara the entire year: Those waters inside of a line from the northern end of Humphrey Head northwesterly to the northern end of Upright Head, from Twin Rocks west to Buck Bay, from Buck Bay south to Bald Bluff, and from Bald Bluff to the northern end of Humphrey Head.

(b) Roche Harbor and Wescott Bay - Waters of Area 22A south of a line projected true east from McCracken Point to landfall on San Juan Island and east of a line projected from the Kellett Bluff navigation light on Henry Island to Bellevue Point on San Juan Island.

(c) )) Areas 22B, 24A, 24B, and 24D.

(((d))) (b) Waters of Area 25C south of a line from Tala Point to Foulweather Bluff.

(((e))) (c) Area 25D.

(((f))) (d) Waters of Area 26B west of a line from Point Monroe to Point Jefferson.

(((g))) (e) Area 26C.

(((h))) (f) Waters of Area 26D north of a line from Neill Point to Piner Point.

(((i))) (g) Waters of Area 27A north of a line from South Point to Lofall and contiguous waters of 27A south of a line projected true east from Hazel Point including all waters of Dabob and Quilcene Bays.

(((j))) (h) Waters of Area 27B north of a line from Triton Head to Tekiu Point.

(((k))) (i) Waters of Area 27C east of a line from Ayers Point to Union.

(((l))) (j) Waters of Area 28A west of a line projected true north-south through Treble Point on Anderson Island, including Henderson Inlet.

(((m))) (k) Waters of Area 28B west of a line projected true north from Penrose Point, including Mayo Cove and Von Geldern Cove.

(((n))) (l) All contiguous waters of Area 28D north and east of a line projected from Dofflemeyer Point through Cooper Point to landfall on the west shore of Eld Inlet, including Totten Inlet, Hammersley Inlet and Oakland Bay.

(6) The following areas are closed the entire year to all gear: Areas 25A and 25E.

[Statutory Authority: RCW 75.08.080. 95-23-020 (Order 95-166), 220-49-020, filed 11/8/95, effective 12/9/95; 94-12-009 (Order 94-23), 220-49-020, filed 5/19/94, effective 6/19/94; 84-08-014 (Order 84-24), 220-49-020, filed 3/27/84; 83-24-024 er 83-200), 220-49-020, filed 11/30/83, effective 1/1/84; 83-04-025 (Order 83-04), 220-49-020, filed 1/27/83; 79-03-014 (Order 79-11), 220-49-020, filed 2/15/79; Order 76-148, 220-49-020, filed 12/2/76; Order 1105, 220-49-020, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-021 Smelt and herring for zoo food. (1) It is unlawful to take, fish for or possess smelt or herring for any purpose except human consumption or fishing bait, except that the director may authorize by permit the taking of smelt or herring in specified areas, quantities and times for emergency use as zoo food for animals. Application for a zoo food permit requires written certification from the zoo director that no other source of smelt or herring is available and the shortage of suitable zoo food will damage the health or well-being of zoo animals.

(2) Licensing: The permit issued by the director will specify the fishery license required to operate the permit.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-021, filed 5/19/94, effective 6/19/94; Order 76-148, 220-49-021, filed 12/2/76; Order 1193, 220-49-021, filed 3/4/75; Order 1105, 220-49-021, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-024 Herring((, candlefish)), anchovy and pilchard fishing--Live boxes--Identification. All herring((, candlefish)), anchovy and pilchard live boxes or other devices for holding live bait shall have attached thereto the fishery license number of the owner in plainly legible letters not less than 3 inches in height, clearly visible above the waterline. In the case of licensed dealers the dealer's license number shall be displayed as described above. It shall be unlawful to fail to identify live boxes as prescribed in this section.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), 220-49-024, filed 5/19/94, effective 6/19/94; Order 1105, 220-49-024, filed 12/28/73.]

AMENDATORY SECTION (Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-49-056 Smelt fishing--Seasons. It shall be unlawful to take, fish for or possess smelt for commercial purposes in Puget Sound except during the following seasons:

(1) Areas 20A and 21A - July 1 to April 15.

(2) Area 22B - ((Closed the entire year)) November 1 to April 15.

(3) Areas 24A, 24B, 24C, and 24D - July 1 to April 15.

(4) Areas 25A and 25E - November 1 to April 15.

(5) Areas 26B, 26C, 26D, 27B, 27C, 28B, and 28C - October 1 to April 15 except those waters within 200 feet of shore adjacent to department property at Ross Point in Area 26C are closed to commercial smelt harvest.

(6) Areas 28A and 28D - September 1 to April 14.

(7) All other areas open the entire year.