WSR 03-02-077

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed December 30, 2002, 1:24 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-22-095.

Title of Rule: Commercial fishing rules.

Purpose: Amend purse seine herring fishery rules.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: Eliminate coastal purse seine herring fishery.

Reasons Supporting Proposal: Reduce pressure on herring stocks and help herring purse seine license holders.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, 902-2373.

Name of Proponent: 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: Herring licenses need to be renewed on an annual basis, unless no fishery is available. If a fishery is available, all licensees are required to renew the license. The traditional herring fisheries in Puget Sound are not available, due to a decline in herring stocks and no open seasons. A minimal fishery exists in the coastal harbors, but is not commercially viable for a full fleet fishery. Additional pressure on these stocks is not warranted, and a closure of the coastal harbor and lower Columbia River herring fishery to purse seine gear will both protect stocks and provide for a license renewal exception.

Proposal Changes the Following Existing Rules: Close coastal harbor herring fishery.

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

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: None.

2. Kinds of Professional Services that a Small Business is Likely to Need in Order to Comply with Such Requirements: None.

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

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Yes.

5. Cost of Compliance for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rules Using One or More of the Following as a Basis for Comparing Costs:

a. Cost per employee;

b. Cost per hour of labor; or

c. Cost per one hundred dollars of sales.

For the entire industry, the total value of the fisheries impacted by this proposal is $5,067. The total sales for the industry is $514,589. The cost per one hundred dollars in sales is 98 cents.

For the largest 10%, the cost is 0 cents per $100 dollars in sales.

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 has minimized the size and timing of the restricted fishing areas and acted to eliminate the need to annually renew herring purse seine licenses.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: Public meeting before the Fish and Wildlife Commission in February 2003.

8. A List of Industries That Will Be Required to Comply with the Rule: A portion of commercial fishing industry; holders of commercial fishing licenses for herring. In 2002, thirteen license holders were active in the fishery.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155.

RCW 34.05.328 does not apply to this rule adoption. Not hydraulics rules.

Hearing Location: Cowlitz County P.U.D., 961 12th Avenue, Longview, WA 98632, on February 7-8, 2003, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Susan Yeager by January 24, 2003, TDD (360) 902-2207 or (360) 902-2267.

Submit Written Comments to: Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by January 31, 2003.

Date of Intended Adoption: February 7, 2003.

December 30, 2002

Evan Jacoby

Rules Coordinator

OTS-6138.1


AMENDATORY SECTION(Amending Order 01-36, filed 3/13/01, effective 4/13/01)

WAC 220-33-060   Herring and anchovies.   It is unlawful to fish for herring or anchovies in the lower Columbia River for commercial purposes or to possess herring or anchovies taken from those waters for commercial purposes, except as provided in this section:


Gear


(1) Purse seine and lampara gear may be used to fish for ((herring or)) anchovies if the cork line of the gear does not exceed 1,400 feet in length and the mesh size of the gear is not less than one-half inch stretch measure.

(2) Lampara gear may be used to fish for herring if the cork line of the gear does not exceed 1,400 feet in length and the mesh size of the gear is not less than one-half inch stretch measure.

(3) It is unlawful to fish with purse seine or lampara gear in the waters of the Columbia River if any part of the purse seine or lampara is in waters that are less than 20 feet deep.


Licensing


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

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

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

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


Fishing periods


(4)(a) Purse seine and lampara gear may be used to fish for ((herring or)) anchovies in SMCRA 1A 7 days per week from January 1 through December 31 of each year.

(b) Lampara gear may be used to fish for herring in SMCRA 1A 7 days per week from January 1 through December 31.


General


(5) Species of fish other than herring or anchovies, except shad and pilchard, taken in the operation of the purse seine and lampara gear shall be returned immediately to the water. Pilchard taken incidental to the herring and anchovy fisheries provided for in this section may not exceed twenty-five percent of the weight of any landing.

[Statutory Authority: RCW 77.12.047. 01-07-016 (Order 01-36), 220-33-060, filed 3/13/01, effective 4/13/01. Statutory Authority: RCW 75.08.080. 95-23-020 (Order 95-166), 220-33-060, filed 11/8/95, effective 12/9/95; 94-12-009 (Order 94-23), 220-33-060, filed 5/19/94, effective 6/19/94; 88-18-066 (Order 88-86), 220-33-060, filed 9/2/88.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

OTS-6139.1


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

WAC 220-36-03001   Grays Harbor -- Seasons and lawful gear -- Varieties other than salmon and sturgeon.   (1) It ((shall be)) is unlawful in Marine Fish-Shellfish Management and Catch Reporting Area 60B to fish for food fish, other than sturgeon and salmon, with purse seine or lampara gear exceeding 900 feet in length or having meshes of less than one-half inch stretch measure, or with drag seine gear exceeding 700 feet in length or having meshes less than 4-1/2 inches stretch measure, except as provided in WAC 220-36-03001(6). It is unlawful to fish for or possess salmon or sturgeon taken with purse seine, lampara, or drag seine gear.

(2) It ((shall be)) is lawful to fish for and possess bottomfish in Marine Fish-Shellfish Management and Catch Reporting Area 60B at any time with set line and hand line jig gear.

(3) It ((shall be)) is lawful to retain for commercial purposes bottomfish taken incidental to any lawful commercial salmon fishery in Grays Harbor Salmon Management and Catch Reporting Areas 2A, 2B, 2C, and 2D, and it ((shall be)) is lawful to retain bottomfish taken incidental to any lawful sturgeon fishery in Marine Fish-Shellfish Management and Catch Reporting Area 60B.

(4) It ((shall be)) is lawful to take, fish for and possess smelt taken for commercial purposes in all waters of Grays Harbor except it is unlawful to take smelt for commercial purposes during weekly closed periods extending from 8:00 a.m. Thursday to 8:00 p.m. Saturday.

(5) It ((shall be)) is lawful to fish for and possess herring, anchovies, candlefish, or pilchards taken for commercial purposes with dip bag net gear at any time in the waters of Marine Fish-Shellfish Management and Catch Reporting Area 60B.

(6)(a) June 1 through October 31 - It ((shall be)) is lawful to fish for((, take)) and possess ((herring,)) anchovies, candlefish, or pilchards with purse seine or lampara in the waters of Grays Harbor, provided ((such)) it is unlawful to use gear ((shall not exceed)) exceeding 1,400 feet in length ((nor contain)) or containing meshes of less than 1/2-inch stretch measure. It is lawful to fish for herring with lampara gear in the waters of Grays Harbor, provided it is unlawful to use gear exceeding 1,400 feet in length or containing mesh less than 1/2-inch stretch measure. All species of fish other than herring, pilchard, candlefish, and anchovy taken in operation of such purse seine or lampara gear must be immediately((, with care,)) returned to the water.

(b) March 1 through April 15 - Closed to all commercial herring, anchovy, candlefish, or pilchard fishing except dip bag net.

(7) It ((shall be)) is lawful to take, fish for and possess herring, candlefish, pilchards, or anchovies taken for commercial purposes with a herring weir from April 1 through September 30 in the waters of Marine Fish-Shellfish Management and Catch Reporting Area 60B, provided that the lead shall not exceed 300 feet in length or extend into any navigation channel or customary gill net drifting lane. It shall be unlawful for any person to install or operate a herring weir without obtaining written permission from the director of fisheries.

(8) It is unlawful to fish with purse seine or lampara gear at all times in the waters of Marine Fish-Shellfish Management and Catch Reporting Area 60B if any part of the purse seine or lampara is in waters that are less than 20 feet deep.

[Statutory Authority: RCW 75.08.080. 95-23-020 (Order 95-166), 220-36-03001, filed 11/8/95, effective 12/9/95; 85-06-033 (Order 85-14), 220-36-03001, filed 3/1/85; 84-08-014 (Order 84-24), 220-36-03001, filed 3/27/84; 80-09-072 (Order 80-69), 220-36-03001, filed 7/18/80; 79-05-007 (Order 79-20), 220-36-03001, filed 4/11/79; 78-07-067 (Order 78-45), 220-36-03001, filed 6/30/78; Order 77-14, 220-36-030 (codified as WAC 220-36-03001), filed 4/15/77; Order 76-148, 220-36-030 (codified as WAC 220-36-03001), filed 12/2/76; Order 1049, 220-36-030, filed 4/11/73; Order 925, 220-36-030, filed 6/3/71; Order 864, 220-36-030, filed 5/12/70; Order 726, 4 (part), filed 4/24/67; subsections 1 and 2 from Order 525, filed 5/3/61; subsection 7 from Order 605, filed 4/21/64; Orders 336 and 256, filed 3/1/60.]

OTS-6140.1


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

WAC 220-40-030   Willapa Bay -- Seasons and lawful gear -- Varieties other than salmon and sturgeon.   (1) It ((shall be)) is unlawful in Marine Fish-Shellfish Management and Catch Reporting Area 60C to fish for food fish, other than sturgeon and salmon, with purse seine or lampara gear exceeding 900 feet in length or having meshes of less than one-half inch stretch measure, or with drag seine gear exceeding 700 feet in length or having meshes of less than 4-1/2 inches stretch measure, except as provided in WAC 220-40-030(3). It is unlawful to fish for or possess salmon or sturgeon taken with purse seine, lampara, or drag seine gear.

(2) It ((shall be)) is lawful to fish for and possess bottomfish taken for commercial purposes in Marine Fish-Shellfish Management and Catch Reporting Area 60C, at anytime with set line and hand line jig gear.

(3)(a) June 1 through October 31 - It ((shall be)) is lawful to fish for and possess ((herring,)) anchovy, candlefish, or pilchards taken for commercial purposes with purse seine or lampara in the waters of Willapa Bay, provided ((such)) it is unlawful to use gear ((shall not exceed)) exceeding 1,400 feet in length ((nor contain)) or containing meshes less than one-half inch stretch measure. It is lawful to fish for and possess herring taken for commercial purposes with lampara gear from the waters of Willapa Bay, except it is unlawful to use lampara gear exceeding 1,400 feet in length or containing mesh less than 1/2-inch stretch measure. All species of fish other than herring, anchovy, candlefish and pilchard taken in operation with such purse seine or lampara gear must be immediately, with care, returned to the water.

(b) February 1 through March 15 - Closed to all commercial herring, anchovy, candlefish or pilchard fishing except dip bag net.

(c) It ((shall be)) is lawful to fish for, take and possess herring, anchovy, candlefish, or pilchards with dip bag net gear at any time in the waters of Willapa Bay.

(4) It ((shall be)) is lawful to retain for commercial purposes bottomfish taken incidental to any lawful commercial salmon fishery in Willapa Bay Salmon Management and Catch Reporting Areas 2G, 2H, 2J, 2K, and 2M, and it shall be lawful to retain bottomfish taken incidental to any lawful sturgeon fishery in Marine Fish-Shellfish Management and Catch Reporting Area 60C.

(5) It ((shall be)) is lawful to take, fish for and possess smelt taken with hand dip nets in any of the waters of Willapa Bay except it is unlawful to take smelt for commercial purposes during weekly closed periods extending from 8:00 a.m. Thursday to 8:00 p.m. Saturday.

(6) It ((shall be)) is lawful to take bottom fish with drag seine in Marine Fish-Shellfish Management and Catch Reporting Area 60C from March 1 through June 30.

(7) It is unlawful to fish with purse seine or lampara gear at all times in the waters of Marine Fish-Shellfish Management and Catch Reporting Area 60C if any part of the purse seine or lampara is in waters that are less than 20 feet deep.

[Statutory Authority: RCW 75.08.080. 95-23-020 (Order 95-166), 220-40-030, filed 11/8/95, effective 12/9/95; 91-08-054 (Order 91-13), 220-40-030, filed 4/2/91, effective 5/3/91; 85-06-033 (Order 85-14), 220-40-030, filed 3/1/85; 84-15-008 (Order 84-66), 220-40-030, filed 7/6/84; 84-08-014 (Order 84-24), 220-40-030, filed 3/27/84; 80-09-072 (Order 80-69), 220-40-030, filed 7/18/80; 79-05-007 (Order 79-20), 220-40-030, filed 4/11/79; Order 77-14, 220-40-030, filed 4/15/77; Order 76-148, 220-40-030, filed 12/2/76; Order 76-26, 220-40-030, filed 1:45 p.m., 4/20/76; Order 925, 220-40-030, filed 6/3/71; Order 864, 220-40-030, filed 5/12/70; Order 726, 4 (part), filed 4/24/67; subsections 1, 2, 3 from Order 679, filed 4/20/66; Order 638, filed 4/28/65; Order 605, filed 4/21/64; Order 569, filed 4/11/63; Order 544, filed 4/3/62; Order 525, filed 5/3/61; Order 507, filed 4/13/60; Orders 483 and 256, filed 2/1/60; subsection 4 from Order 544, filed 4/3/62; Order 525, filed 5/3/61; Orders 448 and 256, filed 3/1/60; subsection 5 from Order 544, filed 4/3/62; Orders 448 and 256, filed 3/1/60; subsections 6, 8, 9 from Order 525, filed 5/3/61; Orders 341 and 256, filed 3/1/60; subsection 7 from Orders 346 and 256, filed 3/1/60.]

Washington State Code Reviser's Office