WSR 00-14-037

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed June 30, 2000, 8:50 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-08-036.

Title of Rule: Commercial fishing rules.

Purpose: Crab gear limitation

Statutory Authority for Adoption: Section 7 [107], chapter 107, Laws of 2000.

Statute Being Implemented: Section 7, chapter 7, Laws of 2000.

Summary: Limits coastal crab gear.

Reasons Supporting Proposal: The crab fishery is overcapitalized, and the available surplus of crab is taken too quickly, resulting in economic disruption. The legislature has charged the department with implementing an even-flow system to provide economic stability.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Phil Anderson, 1111 Washington Street, Olympia, (360) 902-2720; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2927.

Name of Proponent: Washington State 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: the department is proposing rules to achieve an even-flow of coastal commercial crab harvest, as mandated by former RCW 75.30.480 (now recodified). This harvest rate, by lengthening the time period of harvest, promotes stability in the fishery. The maximum crab pot size is standardized to achieve parity between fishers. By establishing a three-tiered maximum number of pots, license history is accounted for. An appeal process is provided.

Proposal Changes the Following Existing Rules: Sets the maximum number of pots that can be fished and standardizes maximum pot size.

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

Small Business Economic Impact Statement

Background: In 1994, the Washington state legislature enacted legislation that established a license limitation program for the coastal Dungeness crab fishery (E2SHB 1471). As a result of this legislation, RCW 75.30.480 was enacted which states:

Coastal Dungeness crab resource plan.

The department [of fish and wildlife], with input from Dungeness crab -- Coastal fisher licensees and processors, shall prepare a resource plan to achieve even-flow harvesting and long-term stability of the coastal Dungeness crab resource. The plan may include pot limits, further reduction in the number of vessels, individual quotas, monthly limits, area quotas, or other measures as determined by the department. The plan shall be submitted to the appropriate standing committees of the legislature by December 1, 1995. [1994 c 260 20.]

In February 1996, the Department of Fish and Wildlife submitted its resource plan for even-flow harvesting and long-term stability in the coastal Dungeness crab fishery to the Senate and House Natural Resource Committees. In developing that resource plan, department staff met with two crab industry workgroups - one representing processors and one representing fishers. After much discussion, the industry representatives and department staff concluded that there were three outstanding issues which prevented them from accomplishing their task: (1) The question of whether the offshore crab resource would be under federal or state jurisdiction; (2) the effect of the federal court order regarding sharing the harvestable shellfish resources with the treaty tribes; and (3) the license limitation program had not been fully implemented. Until these factors had been resolved, the department and the industry recommended delaying further development of an even-flow harvest plan.

These three factors have been resolved to a certain extent. Since 1996, the department has negotiated Dungeness crab annual management agreements with each of the coastal treaty tribes to implement the federal court decision by Judge Rafeedie, and by the end of 1996, the license limitation program had been fully implemented. In 1998, the United States Congress extended the state's authority to manage the Dungeness crab fishery in the exclusive economic zone (from three to two hundred miles) adjacent to the Washington coast until September 30, 2001.

The coastal Dungeness crab fleet has significantly grown since the mid-1980s. This has greatly accelerated the catch rates, which has resulted in most of the harvest occurring very early in the season. By 1994, 50% of the harvest occurred in the first six weeks of the nine-month season; by 1996, 50% of the harvest was occurring in the first two weeks of the season. This increasing harvest rate in the months of December and January makes it difficult relative to sharing the harvestable resource with the treaty tribes. As a result of concern over the increasing catch rate and the resolution of these three factors, department staff and industry members agreed to move forward with the development of an even-flow harvest regime. The department formed a Coastal Dungeness Crab Advisory Group and held a series of meetings, which were open to the public to discuss goals, objectives, and management strategies.

The Coastal Dungeness Crab Advisory Group is comprised of twenty members - seventeen fishers and three processing representatives. Advisors were selected based on various criteria, including:

Experience in the coastal Dungeness crab fishery.
Affiliation/membership to a larger group (to maximize stakeholder participation).
Size of the vessel used (to ensure small and large boat representation).
Area fished (for broad geographical representation).
Of the fishing representatives, ten are form the Westport area, four are from the Columbia River area, and three reside in the Puget Sound area. Of the processors, two are based in Westport and one is located in the Columbia River area. These fishers also represent the Washington Dungeness Crab Fishermen's and the Columbia River Fisherman's Associations on the advisory group.

Department staff and members of the coastal Dungeness crab fishing industry jointly developed a goal of providing a sustainable Dungeness crab fishery of high quality product consistent with the "even flow" legislative mandate, and the following objectives for the "even flow" harvest management process:

1. Reduce December/January harvest rate.

2. Improve economic yield.

3. Develop fair and equitable management strategies.

4. Utilize best biological information.

5. Reduce differences between Indian and non-Indian regulations.

6. Coordinate with other government entities as appropriate.

Between February 1999 and April 2000 the department held eighteen advisory group meetings which were open to the public and, together with industry representatives, developed an even flow harvest management plan which outlines the need to implement a plan to reduce the overcapitalization of the coastal crab fishery. There was general acceptance that taking no more than 50% of the total nontreaty harvest in the months of December and January would represent "even flow."

Proposed Regulatory Amendments: The Department of Fish and Wildlife is proposing amendments to WAC 220-52-040 Commercial crab fishery -- Lawful and unlawful gear, methods, and other unlawful acts to include the following provisions:

A tiered pot limit of three hundred, four hundred fifty, or five hundred fifty pots for each coastal Dungeness crab license based on landings during the qualifying period (12/1/96 - 9/15/98) of which no more than two hundred pots may be fished in Grays Harbor.
A requirement for pot tags, effective November 28, 2000.
A requirement that all crab buoy color schemes are registered with the department.
A requirement that each license has only one buoy brand registered with the department.
Unlicensed vessels will be allowed to barge pots from November 28 - December 2 provided the licensed owner is on board and that no more than one hundred fifty pots are being barged.
The Department of Fish and Wildlife is proposing an amendment to WAC 220-52-043 Commercial crab fishery -- Additional gear and license use requirements to include the following provisions:

A maximum size limit for coastal crab pots of thirteen cubic feet, effective December 1, 2000 (or the effective date of the regulation).
Economic Impact of the Proposed Amendments to WAC 220-52-040 and 220-52-043: The Department of Fish and Wildlife used the following process in evaluating the economic impact of the proposed amendments to WAC 220-52-040 and 220-52-043:

1. Determine the categories of businesses that must comply with the proposed regulations.

2. Determine the employment profile of businesses affected by the proposed regulation.

3. Determine the "more than minor" cost threshold for each category of business.

4. Determine whether the estimated cost exceeds the "more than minor" cost threshold for each category of business.

5. Determine whether the proposed regulations impose a disproportionate cost burden on small businesses.

6. Miscellaneous small business economic impact statement (SBEIS) requirements.

1. Which businesses must comply with the proposed regulation? The purpose of the proposed rule is to limit the number of pots a coastal Dungeness crab fisher can fish in Pacific Ocean waters adjacent to Washington's coast in order to reduce the catch rate during the months of December and January in order to achieve even-flow harvesting and long-term stability of the coastal Dungeness crab resource. The category of businesses that the rule affects is coastal Dungeness crab commercial fishers who are:

1. Licensed by the state of Washington, Oregon, or California; and

2. Fishing in Pacific Ocean waters adjacent to Washington's coast (from 0 to 200 miles offshore).

2. What is the employment profile of businesses affected by the proposed regulation? To the Department of Fish and Wildlife's knowledge, all coastal Dungeness crab commercial fishing operations are businesses with fewer than fifty employees and are "small businesses" as that term is defined in the Regulatory Fairness Act (RFA), RCW 19.85.020(1).

3. What are the "more than minor" cost thresholds for businesses affected by the proposed regulation? An SBEIS is required if a proposed regulation will impose "more than minor" costs on businesses in an industry. An industry is defined as all of the businesses in this state in any one four-digit standard industrial classification as published by the United States Department of Commerce. The "more than minor" threshold ranges from $50 to $300 depending on what standard industrial code category the business falls into. This SBEIS uses $50.00 as the benchmark between minor and "more than minor" costs.

4. Do the costs imposed by the proposed rule exceed the "more than minor" cost threshold? There is a cost associated with the mandatory pot tags, which would be effective from November 28, 2000. Costs of the pot tags range from .17/tag to .21/tag. A large number of fishers already use these tags because they are helpful in recovery of lost gear. An initial cost to each fisher could be from $51 (300 tags at .17/tag for each pot) up to a maximum of $116 (550 tags at .21/tag for each pot) tags can be used from year to year; additional costs would only be for replacement of lost or broke tags.

For fishers who have to reduce the number of pots they fish, there may be some costs associated with fishing fewer pots. A pot reduction may mean some fishers will make more frequent trips to and from port to tend their pots. This may result in added fuel costs, but may be offset by less time/cost to fish fewer pots and reduced pot loss.

The Department of Fish and Wildlife concludes that the proposed regulatory amendments are likely to increase costs by more than the "more than minor" $50 cost threshold.

5. Does the proposed regulation impose a disproportionate cost burden on small businesses? The Regulatory Fairness Act, chapter 19.85 RCW, requires that the economic impact of proposed regulations on small businesses be examined relative to their impact on large businesses. The act outlines the requirements for a small business economic impact statement (SBEIS). For the purposes of an SBEIS, the term "small business" is defined as a business entity that has the purpose of making a profit and has fifty or fewer employees. An agency must prepare an SBEIS when a proposed rule, or rule amendments, have the potential of placing a more than minor economic impact on businesses in an industry.

To determine whether the proposed amendments to these rules will have a disproportionate impact on small businesses, the impact statement must compare the cost of compliance for small businesses with the cost of compliance for the 10% of the businesses that are the largest businesses required to comply with the proposed rules. Since all coastal Dungeness crab fishers are by definition small businesses there are no large businesses within this industry required to comply with the proposed amendments to these two rules. Consequently, small businesses are not disproportionately impacted by the proposed amendments to the rules.

6. Miscellaneous SBEIS requirements.

a. How did the Department of Fish and Wildlife involve affected businesses and other interested parties in the development of this rule? The department established the Coastal Dungeness Crab Advisory Group that is comprised of twenty members - seventeen fishers and three processing representatives and held a series of meetings that were open to the public. The advisory group meetings were held on the following dates in 1999: February 19, March 3, March 24, June 9, July 1, July 16, August 6, October 11, October 26, October 29, November 9, and November 12. There have been six advisory group meetings held in 2000: February 11, February 29, April 3, April 8, April 19, and April 28.

Following the July 16 meeting, department staff developed and distributed the coastal Dungeness crab even flow harvest management plan to all Washington coastal Dungeness crab license holders for review. The Department's Fish and Wildlife Commission held a public meeting on August 6, 1999, in Ocean Shores at which it discussed management objectives for the coastal Dungeness crab fishery.

Department staff held another advisory group meeting on October 11, 1999, to discuss pot limit options and the potential effects on coastal crab fishers.

The department held a formal rule adoption hearing on October 26, 1999, at which it received comments from twenty coastal crab fishers regarding the proposed rule.

Following the hearing, the department held a conference call with the Coastal Dungeness Crab Advisory Group on October 29, 1999, and an advisory group meeting on November 12, 1999. At those meetings, department staff further discussed the pot limit options and solicited possible alternatives.

Due to unanticipated implementation challenges with a tiered pot reduction system, the department placed a temporary limit of five hundred pots for all fishers effective December 1, 1999, through March 22, 2000. The department spent a great deal of time working on the challenges that it identified in the fall of 1999 regarding implementation of a tiered system. The department held a meeting February 11, 2000, with the coastal crab advisory group and presented a list of proposed rules that would make implementation of a tiered pot limit feasible and discussed whether or not industry wanted to move forward with a pot reduction plan.

On February 29, 2000, the department held an advisory group meeting to discuss pot limit options. While industry members were still committed to pot reduction, they had become sharply divided in the type of pot reduction plan they preferred.

The department presented a three-tiered pot limit plan as its preferred alternative at the Fish and Wildlife Commission meeting on April 8. The commission voiced its approval for a three-tiered pot limit system. Fifteen members of the crab industry testified; five in support of the tiered pot limit, and ten in support of a limit of five hundred pots for all fishers.

After the April 8 meeting, a group of crab fishers met with the director to discuss whether there was any flexibility relative to implementing a pot limit system different than what the commission approved. In response, the director indicated that he was in favor of a pot reduction system that would achieve some level of pot reduction; he also stated that he had a limited amount of flexibility and directed department staff to meet with industry representatives one more time in an effort for industry to reach an "informed consent."

On April 28, department staff met with members of the coastal crab industry including representatives from the Washington Dungeness Crab Fishermen's Association and the Columbia River Crab Fishermen's Association. After much discussion, industry was unable to reach a consensus on a pot limit system.

With regard to the development of the SBEIS, prior to the implementation of the temporary 500-pot limit the department conducted a survey of thirteen Washington coastal Dungeness crab fishers who represented a cross-section of the coastal crab fleet and one processor. The fishers who were surveyed varied in the number of pots currently fished, the size of their fishing vessels, and the amount of crab they landed during the qualifying period.

b. What are the reporting, record-keeping, and other compliance requirements, and what professional services is a small business likely to need in order to comply with the requirements of the proposed rule? Compliance requirements include: (1) Mandatory registration of buoy brand numbers and buoy color schemes for all gear deployed in the coastal crab fishery, (2) a pot tag on all pots; printed with the license number or name of the vessel, and a contact phone number, (3) a maximum crab pot size of thirteen cubic feet.

Currently, to our knowledge, all of the crab pots used in this fishery are in compliance with the maximum pot size and several fishers already use pot tags that meet the department's proposed requirement. Registration of buoy brands and buoy color schemes will be able to be done at the time that a fisher renews his/her license. Department staff plans to accommodate the registration of buoy color schemes by being available in major crab fishing ports during the summer to voluntarily record fishers' buoy color schemes.

A small business should not need any professional services to comply with the requirements of the proposed rule.

c. Will the proposed rule cause businesses to lose sales or revenue? It is very difficult to assess the economic impact of a pot limit on the coastal Dungeness crab fishery because there are so many factors to consider:

Amount of pot reduction (i.e., number of pots currently fishing minus individual pot limit) which may vary from a significant reduction to a significant increase (e.g., if a fisher currently fishes three hundred pots and receives a four hundred fifty pot limit, he/she may add one hundred fifty pots).
Annual crab abundance (i.e., amount of crab available to be caught).
Individual effort level.
Amount of crab fishing experience.
Distribution of crab off the coast (i.e., fishing in an area with a high crab abundance vs. an area with low crab abundance).
Weather conditions.
Size of fishing vessel (i.e., larger vessels can usually travel greater distances offshore).
Market conditions and demand for crab.
Appendix A lists Washington's coastal crab fishers, the amount of crab each individual fisher caught during the qualifying period (1996-97 and 1997-98 seasons) in pounds, and the amount of pots each fisher reported to have fished during the 1998-99 season. This table demonstrates that fishers who produced large quantities of crab, 150,000 pounds or more in two seasons, currently fish an average of six hundred thirty-eight pots, but range anywhere from three hundred - one thousand pots. Fishers who produced small quantities of crab, less than 39,000 pounds in two years, fish an average of two hundred seventy-three pots, and range from one hundred - five hundred seventy-five pots.

Currently, the number of pots fished is up to each individual fisher without a maximum limit. If the reduction to an individual is significant, the pot limit may mean a reduced catch for that fisher in a given month. However, by limiting the number of pots that can be fished overall, there could potentially be more crab per pot fished and/or more crab caught by an individual throughout the season.

One of the key factors in determining the amount of crab a fisher may catch is fishing effort. Fishing effort in the crab fishery can best be expressed in "pot-months." A pot-month is defined as one pot fishing for one month. Estimates of total fishing effort expressed in pot-months and total season catch from 1982 to 1997 are shown in Appendix B. The correlation between fishing effort and crab abundance is apparent. Fishing effort increases during and immediately following years of high crab abundance and remains high for several seasons after crab abundance declines. By reducing the amount of pots being fished each month by a maximum of 6.6%, the crab fleet will more than likely continue to catch the amount of crab available to be caught. Thus, it is the Department of Fish and Wildlife's opinion that there would not be a loss of revenue to the crab fleet; rather, there may be an increase in revenue if the catch of crab is spread out over the season because market value tends to increase as the season progresses.

In an effort to gather information for this SBEIS, prior to the temporary five hundred-pot limit, the department surveyed thirteen Washington coastal Dungeness crab fishers regarding the estimated economic impact to their businesses if the proposed rules were passed. Of the thirteen fishers, seven currently fish with more than five hundred pots and would have to reduce the number of pots fished, four fish around five hundred pots and would fish the same amount, and two fish less than five hundred pots and could increase the amount of pots fished. The following are the results of that survey:

Historically fish from six hundred to nine hundred fifty pots:

Four of these fishers fish the entire season - from December 1 through September 15; one fishes from December through March, another from December through April, and another from December through June - all fish the months of December and January.
One fisher who fishes the entire season landed 50,000 pounds in each of the last two seasons with about 66% of that landed in December and January; another fisher who fishes December through April landed 200,000 pounds in each of the last two seasons with about 50% of that landed in December and January.
With a five hundred pot limit, three of the fishers estimate that their revenue would decrease by 15-25%; two fishers did not think a five hundred pot limit would affect their revenue; one fisher believed that a five hundred pot limit would have the potential to increase his revenue as a result of higher market prices for crab; and one fisher did not quantify the effect of a five hundred pot limit on his revenue.
Historically fish from four hundred fifty to six hundred pots:

Two of these fishers fish the entire season - from December through September; one fisher fishes from December through April, and another fishes from December through June or July - all of them fish in December and January.
Three of the fishers landed between 50,000 to 80,000 pounds in each of the 97-98 and 98-99 seasons; one fisher did not disclose his landings; all of the fishers landed more than 50% of their total landings in December and January.
Three of the fishers believe that there would not be any loss in revenue if they were restricted to five hundred pots; one fisher believes that there would be an increase in revenue with a five hundred pot limit because the market value for crab may increase as the season progresses.
Historically fish less than five hundred pots:

These fishers currently fish three hundred sixty to four hundred pots (although one has fished up to seven hundred pots in the past).
One fisher fishes from December through July, and the other fishes from December through April or May - both fish in December and January.
One fisher landed about 30,000 pounds in each of the last two seasons with march being his most productive month; the other fisher did not disclose his landings, but estimated that 60% were caught in December and January.
Appendix A
Qualifying Seasons Best of
96/97 97/98 98/99 98/99 pots 3 years
815 1,432 114 100 1,432
2,882 2,446 0 200 2,882
2,392 4,618 554 100 4,618
1,114 4,811 3,688 180 4,811
2,471 5,060 2,877 380 5,060
5,173 2,951 331 150 5,173
5,412 3,435 1,985 200 5,412
4,578 5,639 3,922 200 5,639
6,590 5,570 3,505 130 6,590
2,021 5,302 7,957 210 7,957
3,896 8,690 5,386 181 8,690
2,765 9,196 4,927 200 9,196
7,407 9,972 8,716 208 9,972
7,043 10,092 278 150 10,092
2,123 5,798 10,310 340 10,310
9,994 10,885 8,756 210 10,885
4,836 9,778 11,285 240 11,285
2,452 11,330 4,988 200 11,330
8,252 7,964 11,698 150 11,698
5,657 11,710 0 155 11,710
12,206 6,884 2,313 400 12,206
7,853 13,424 4,695 300 13,424
10,993 13,591 8,116 200 13,591
9,677 16,036 12,993 189 16,036
7,520 11,557 16,918 200 16,918
11,384 17,570 16,903 400 17,570
2,793 18,702 10,016 483 18,702
5,774 18,894 0 300 18,894
9,633 19,445 8,126 308 19,445
15,344 13,286 20,560 280 20,560
20,763 20,300 13,187 250 20,763
20,897 16,676 9,340 483 20,897
15,246 21,309 24,321 410 21,309
21,677 20,921 0 550 21,677
6,219 21,781 12,457 168 21,781
22,351 22,446 19,627 300 22,446
17,882 18,901 23,770 250 23,770
12,082 24,450 9,578 275 24,450
10,050 24,504 19,282 300 24,504
21,063 24,720 24,949 200 24,949
25,261 20,707 11,489 300 25,261
11,989 10,418 27,196 438 27,196
1,099 5,047 28,503 575 28,503
17,111 28,678 20,779 550 28,678
29,333 10,270 22,070 430 29,333
30,027 2,825 0 300 30,027
18,431 31,043 17,997 440 31,043
26,404 31,290 20,756 305 31,290
23,718 31,673 17,102 400 31,673
31,828 22,537 17,866 347 31,828
32,182 19,161 28,886 400 32,182
27,732 28,037 32,356 380 32,356
24,323 20,241 32,378 400 32,378
157 22,445 32,600 450 32,600
32,650 33,477 19,285 300 33,477
18,219 34,484 28,922 300 34,484
22,875 35,240 16,593 270 35,240
36,114 29,051 36,278 400 36,278
37,280 26,870 31,038 320 37,280
37,595 32,017 0 530 37,595
38,409 29,642 4,396 525 38,409
32,990 38,945 29,571 300 38,945
30,912 23,606 39,217 400 39,217
29,860 32,777 39,793 500 39,793
21,253 22,755 39,836 550 39,836
30,935 35,838 39,996 450 39,996
40,053 21,808 0 350 40,053
9,004 40,456 17,671 300 40,456
37,776 40,732 33,229 500 40,732
36,185 25,511 40,950 450 40,950
17,548 10,540 41,580 550 41,580
30,796 41,631 24,611 425 41,631
22,881 41,634 28,367 550 41,634
37,476 38,239 43,515 520 43,515
39,777 29,266 43,628 562 43,628
43,962 39,794 40,474 330 43,962
44,094 31,337 33,555 400 44,094
34,613 44,470 0 460 44,470
35,556 27,997 45,271 390 45,271
40,559 46,106 41,540 600 46,106
32,186 46,432 28,295 500 46,432
30,181 46,772 32,549 500 46,772
27,801 46,978 46,752 456 46,978
27,747 47,227 26,601 350 47,227
48,406 39,865 40,969 400 48,406
48,525 46,348 46,219 635 48,525
9,424 7,654 49,434 350 49,434
15,869 24,777 49,880 450 49,880
1,063 3,864 50,367 300 50,367
39,142 37,147 50,758 597 50,758
21,190 40,182 50,968 500 50,968
37,856 23,338 51,700 480 51,700
50,952 53,218 36,527 494 53,218
43,498 37,279 56,071 500 56,071
26,477 27,828 56,402 400 56,402
31,667 44,808 57,140 470 57,140
57,523 49,686 53,482 483 57,523
36,052 25,358 58,370 600 58,370
50,286 58,743 44,260 500 58,743
49,224 30,241 59,867 445 59,867
39,959 35,481 60,258 400 60,258
21,062 60,459 0 440 60,459
49,308 60,485 45,491 440 60,485
37,754 49,172 62,199 500 62,199
39,391 28,456 62,361 500 62,361
63,279 46,219 52,828 482 63,279
63,915 63,506 59,637 479 63,915
64,304 41,847 4,454 550 64,304
64,982 54,324 50,236 520 64,982
66,443 32,946 65,257 660 66,443
60,593 54,407 66,717 700 66,717
66,963 22,819 0 575 66,963
62,641 53,509 67,097 500 67,097
31,535 67,287 68,496 669 68,496
49,521 69,005 45,726 507 69,005
44,501 32,245 70,157 600 70,517
51,161 71,226 63,020 530 71,226
38,038 46,831 71,314 545 71,314
60,664 72,116 55,127 550 72,116
72,367 70,673 70,596 600 72,367
61,647 76,238 55,668 540 76,238
63,983 62,143 76,289 600 76,289
76,672 57,720 0 470 76,672
77,038 37,055 64,815 500 77,038
60,062 78,521 32,159 575 78,521
38,113 44,664 80,174 475 80,174
80,441 44,255 61,393 500 80,441
58,969 80,816 60,054 550 80,816
45,784 41,171 81,083 360 81,083
84,861 51,978 65,520 595 84,861
85,670 53,439 64,857 523 85,670
54,686 46,092 86,827 600 86,827
72,150 86,455 87,086 630 87,086
48,047 55,642 89,307 550 89,307
29,762 68,109 89,600 450 89,600
47,113 89,767 91,292 640 91,292
86,780 88,616 92,210 600 92,210
74,328 65,683 92,478 650 92,478
37,786 52,450 92,802 500 92,802
42,346 80,225 93,180 540 93,180
93,335 63,531 23,698 300 93,335
69,548 93,572 76,984 708 93,572
76,141 64,531 93,810 650 93,810
30,064 95,076 59,781 750 95,076
95,347 51,693 45,365 440 95,347
45,541 33,356 95,646 400 95,646
83,353 75,887 96,111 500 96,111
65,587 98,952 76,290 535 98,952
99,083 86,312 51,904 600 99,083
104,564 106,401 75,432 925 106,401
106,684 38,604 38,238 500 106,684
105,264 83,512 108,400 720 108,400
110,261 55,552 108,430 775 110,261
92,012 71,093 119,256 520 119,256
89,691 72,203 120,031 500 120,031
126,879 126,398 95,588 670 126,879
127,097 51,560 94,180 640 127,097
99,291 106,804 131,820 1,000 131,820
133,740 73,816 116,542 700 133,740
99,053 102,514 138,390 761 138,390
140,939 40,692 62,150 498 140,939
100,039 140,135 141,898 750 141,898
61,260 38,508 145,334 750 145,334
145,509 60,391 41,410 518 145,509
146,832 119,029 70,522 550 146,832
107,386 128,725 148,129 1,000 148,129
92,422 59,778 148,276 665 148,276
150,706 135,283 129,097 600 150,706
170,903 82,088 123,971 770 170,903
242,842 137,938 208,692 800 242,842

Appendix B
Number of vessels and estimated number of crab pots fished in the Washington coastal Dungeness crab fishery 1976 through 1998.
Number Pounds Effort estimate CPUE estimate, (lbs./pot-month)
Season of vessels landed Landings (pot-months) Mean High Month Low Month
1976-77 141 11,673,995 5,599 196,574 59.4 94.4 May 25 July
1977-78 125 7,368,660 5,616 176,638 41.7 82.8 Dec. 18.7 June
1978-79 132 7,979,403 5,515 192,544 41.4 89.1 Jan. 16.2 June
1979-80 121 6,546,544 4,492 180,628 36.2 53.5 Jan. 24.9 June
1980-81 103 2,689,142 3,470 119,112 22.6 60.8 Sept. 8.8 March
1981-82 95 2,564,766 3,522 131,854 19.4 58 Sept. 10.7 July
1982-83 102 3,972,555 4,693 147,696 26.9 50.8 Dec. 12.1 June
1983-84 122 4,696,701 5,277 207,990 22.6 68.5 Dec. 6.7 April/June
1984-85 105 2,921,078 4,319 149,294 19.6 33.2 Dec. 5.4 March
1985-86 100 3,946,552 4,145 177,400 22.2 51.7 Dec. 5.8 April
1986-87 104 3,183,005 4,021 177,003 18 47 Dec. 8 March
1987-88 149 16,247,701 6,966 225,256 72 212 Dec. 16 Aug./Sept.
1988-89 229 21,867,413 9,245 379,823 58 102 Jan. 9 Sept.
1989-90 229 6,666,783 7,173 326,662 20 32 Jan. 9 Sept.
1990-91 171 6,760,143 6,722 325,740 21 54 Dec. 5.9 March
1991-92 185 7,455,029 6,113 281,231 26.5 50.7 Sept. 6.8 April
1992-93 203 13,396,700 7,515 379,921 35.3 92.6 Dec. 7.4 June
1993-94 257 19,693,787 9,237 469,402 42 103.3 Dec. 10.9 June
1994-95a 242 19,407,222 8,581 474,735 40.9 93.9 Jan. 10.6 July
1995-96 212 16,895,429 6,543 444,586 38 209.6b Dec. 5 July
1996-97 200 9,269,172 5,832 433,590 19.7 61.7 Sept. 3 March
1997-98 184 7,551,638 5,230 414,568 18.2 61.8 Dec. 2.8 May
1998-99 178 8,799,439 5,513 438,800 20 53 Dec. 4.6 Feb.

a Starting in 1994-95 only nontreaty effort and harvest figures reported.
b Only 15 "regular" vessels participated due to an exvessel price strike during December.

A copy of the statement may be obtained by writing to Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2942.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. No hydraulics rules.

Hearing Location: Best Western Hotel, 15901 West Valley Road, Tukwila, WA 98188, on August 11-12, 2000, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by July 25, 2000, TDD (360) 902-2207, or (360) 902-2226.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501, fax (360) 902-2942, by August 10, 2000.

Date of Intended Adoption: August 11, 2000.

June 29, 2000

Evan Jacoby

Rules Coordinator

OTS-3432.5


AMENDATORY SECTION(Amending Order 98-185, filed 9/4/98, effective 10/5/98)

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. It is unlawful for any vessel geared or equipped with commercial net fishing gear to have aboard any quantity of crab while it is fishing with the net gear or when it has other food fish or shellfish aboard for commercial purposes.

(2) Area must be open to commercial crabbing. Unless otherwise provided, it is unlawful 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 for taking crabs for commercial purposes by permanent rule or emergency rule of the department: Provided, That following the close of a commercial crab season, permission may be granted by the director or his or her designee on a case-by-case basis for crab fishers to recover shellfish pots that were irretrievable due to extreme weather conditions at the end of the lawful opening. Crab fishers must notify and apply to department enforcement for such permission within twenty-four hours prior to the close of season.

(3) Crabs must be male and 6-1/4 inches. 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 immediately in front of the tips.

(4) Each person and each Puget Sound license 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 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 two Puget Sound crab licenses from designating and using the licenses from one vessel as authorized by RCW 75.28.048(4).

(5) Dungeness Bay Area Limit of 20 pots. No person, nor any group of persons using the same vessel, may take or fish for crabs for commercial purposes by setting, using, operating, or controlling more than 20 shellfish pots and/or ring nets within the waters of Dungeness Bay lying west of a line projected from the new Dungeness Light southward to the outermost end of the abandoned dock at the Three Crabs Restaurant on the southern shore of Dungeness Bay.

(6) 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 pots in excess of the following limits:

(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) 30 pots in Marine Fish-Shellfish Management and Catch Reporting Area 25A west of a line from the new Dungeness Light to the mouth of Cooper Creek.

(7) Groundline gear is unlawful. No crab pot or ring net may be attached or connected to other crab pot or ring net by a common groundline or any other means that connects crab pots together.

(8) Puget Sound crab pots must be tagged. In Puget Sound it is unlawful to place in the water, pull from the water, possess on the water, or transport on the water any crab pot without a pot tag that meets the requirements of WAC 220-52-043.

(9) Puget Sound - No person can possess or use gear with other person's tag. In Puget Sound no person may possess, use, control, or operate any crab pot not bearing a tag identifying the pot as that person's, except that an alternate operator designated on a primary license may possess and operate a crab pot bearing the tag of the license holder.

(10) Cannot tamper with pot tags. No person shall remove, damage, or otherwise tamper with crab pot tags except when lawfully applying or removing tags on the person's own pots.

(11) Thirty-day period when it is unlawful to buy or land crab from 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, Columbia River, 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 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 properly licensed for commercial crab fishing if no Dungeness crabs are aboard. Inspections will be performed by authorized department personnel not earlier than twelve hours prior to the opening of the coastal crab season and during the following thirty-day period.

(12) 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.

(13) 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 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 pots unless the person is in possession of valid documentation issued by the department that specifies the shellfish pot limit assigned to the license.

(14) Determination of coastal crab pot limits.

(a) The number of shellfish 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 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 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 season with the most poundage of Dungeness crab landed on a license shall determine the shellfish pot limit for that license. A shellfish pot limit of 300 shall be assigned to a license with landings that total from zero to 26,999 pounds; a shellfish pot limit of 450 shall be assigned to a license with landings that total from 27,000 to 104,999 pounds; a shellfish pot limit of 550 shall be assigned to a license with landings that total 105,000 pounds 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 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 pot limit, provided that the same vessel was named on the licenses, and the same person held the licenses. A shellfish pot limit assigned as a result of combined landings is invalidated by any subsequent change in ownership of the licenses. No vessel named on a Dungeness crab fishery license shall be assigned more than one shellfish pot limit.

(15) Appeals of coastal crab pot limits. An appeal of a shellfish pot limit by a coastal commercial license holder shall be filed with the department on or before the 30th day following the department's assignment of a shellfish pot limit under subsection (14) of this section. The shellfish pot limit assigned to a license by the department shall remain in effect until such time as the appeal process is concluded.

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

(a) Such a vessel may not carry aboard more than 150 shellfish pots at any one time.

(b) Such a vessel may deploy shellfish 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 of the shellfish pot gear must be aboard the vessel when the gear is being deployed.

(17) Coastal shellfish pot tags. It is unlawful for a person to use a shellfish pot in the coastal Dungeness crab fishery unless the pot bears 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. No person may operate or possess a pot that bears another person's tag, except that a person who is licensed as an alternate operator may operate or possess a pot that bears the tag of the primary license holder. It is unlawful for any person who is not the owner of Dungeness crab pot gear to remove, damage, or otherwise tamper with pot gear tags.

(18) Coastal - 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 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.

(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.

[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.]


AMENDATORY SECTION(Amending Order 98-185, filed 9/4/98, effective 10/5/98)

WAC 220-52-043
Commercial crab fishery -- Additional gear and license use requirements.

(1) Commercial gear limited to pots and ring nets. It shall be unlawful to take or fish for crabs for commercial purposes except with shellfish pots and ring nets.

(2) Commercial gear escape rings and ports defined. It shall be unlawful to use or operate any shellfish pot gear in the commercial Dungeness crab fishery unless such gear meets the following requirements:

(a) Pot gear must have not less than two escape rings or ports not less than 4-1/4 inches inside diameter.

(b) Escape rings or ports described above must be located in the upper half of the trap.

(3) Puget Sound commercial gear tagging requirements.

In Puget Sound, all crab pots must have a durable, non-biodegradable tag permanently and legibly marked with the primary license owner's name or license number, and telephone number securely attached to the pot. If the tag information is illegible, or if the tag is lost for any reason, the pot is not in compliance with law.

(4) Puget Sound - Description of lawful buoys. All buoys attached to commercial crab gear in Puget Sound waters must consist of a durable material and remain floating on the water's surface when five pounds of weight is attached. It is unlawful to use bleach or antifreeze bottles or any other container as a float. All buoys fished under a single license must be marked in a uniform manner using one buoy brand number registered by the license holder with the department and be of identical color or color combinations. No buoys attached to commercial crab gear in Puget Sound may be both red and white in color unless a minimum of thirty percent of the surface of each buoy is also prominently marked with an additional color or colors other than red or white, as the red and white colors are reserved for personal use crab gear as described in WAC 220-56-320 (1)(c).

(5) Commercial crab license requirements. In addition to, and separate from, all requirements in this chapter that govern the time, area, gear, and method for crab fishing, landing, possession, or delivery of crabs, no commercial crab fishing is allowed except when properly licensed. A person may take, fish for, land, or deliver crabs for commercial purposes in Washington or coastal waters only when the person has the license required by statute, or when the person is a properly designated alternative operator to a valid license. For Puget Sound, a person must have a "Dungeness crab - Puget Sound" fishery license provided by RCW 75.28.130. For coastal waters, such person must have a "Dungeness crab - Coastal" fishery license provided by RCW 75.28.130. To use ring nets instead of or in addition to pots, then the licensee must also have the "Crab ring net - Puget Sound" or "Crab ring net - non-Puget Sound" license in RCW 75.28.130. Qualifications for the limited entry licenses, requirements for designating vessels, and use of alternate operators is provided by and controlled by chapters 75.28 and 75.30 RCW.

(6) Maximum size for coastal crab pots. The maximum volume of a crab pot used to fish for or take Dungeness crab from the waters provided for in WAC 220-52-040(12) is thirteen cubic feet.

(7) Incidental catch may not be retained. It is unlawful to retain salmon, food fish, or any shellfish other than octopus that is taken incidental to any crab fishing.

[Statutory Authority: RCW 75.08.080. 98-19-012 (Order 98-185), 220-52-043, filed 9/4/98, effective 10/5/98; 94-12-009 (Order 94-23), 220-52-043, filed 5/19/94, effective 6/19/94; 93-15-051, 220-52-043, filed 7/14/93, effective 8/14/93; 84-08-014 (Order 84-24), 220-52-043, filed 3/27/84; 79-02-053 (Order 79-6), 220-52-043, filed 1/30/79; Order 77-145, 220-52-043, filed 12/13/77; Order 1179, 220-52-043, filed 11/19/74; Order 807, 220-52-043, filed 1/2/69, effective 2/1/69. Formerly WAC 220-52-040(1).]

Washington State Code Reviser's Office