WSR 03-08-100

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed April 2, 2003, 11:55 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-03-053.

Title of Rule: Commercial fishing rules.

Purpose: Convert coastal pilchard fishery from trial to experimental permit fishery.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: The fishery is overcapitalized, and the resource is unable to sustain unlimited participation.

Reasons Supporting Proposal: Finite resource availability.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, 902-2930; Implementation: Phil Anderson, 1111 Washington Street, Olympia, 902-2720; 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: The coastal pilchard fishery has rebounded from historic low levels to a viable fishery. The fishery seems dependent on oceanic temperatures, with an increase in harvest correlating to an increase in temperatures. A recent trend in a temperature decline may affect harvest levels. The fishery is currently overcapitalized. Mandatory observer coverage to protect salmon and the possibility of overharvest necessitates a more limited participation. This fishery has been operating on a trial permit basis for two years. Conversion to an experimental fishery for the remainder of the emerging commercial fishery cycle, trip limits, and by-catch restrictions will reduce the potential to delay further recovery of the stocks.

Proposal Changes the Following Existing Rules: Changes coastal pilchard 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: The Department of Fish and Wildlife is proposing several amendments to WAC 220-88C-010, 220-88C-020, 220-88C-030, 220-88C-040, and 220-88C-050, coastal pilchard fishery.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: There is a logbook requirement in the proposed rule; however, a small business should not need any professional services to comply with the requirements of the proposed rule.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: In addition to the logbook requirement, participating fishermen are required to obtain at-sea observer coverage for a portion of their fishing trips. Fishermen may elect to use a department-provided observer or can contract with a National Marine Fisheries Service-certified observer company. If the fisherman elects to use the department-provided observer, then he is required to reimburse the department for this service at a rate of $100 per landing. There are not any additional costs of compliance for businesses.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? It is very difficult to assess the economic impact of limiting the number of participants in the coastal pilchard experimental fishery, as the fishermen who have made significant landings of pilchard (> 200 mt in the past three years, cumulative total) will be allowed to continue to participate in the coastal pilchard fishery, and by limiting the number of permits issued, the fishery could become economically viable for the eligible participants. However, the number of permits in the proposed rule is sufficient enough to harvest the amount of pilchards available to the Pacific Northwest fishery, and should be adequate to meet the market demands.

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.

Participating fishermen are required to obtain at-sea observer coverage for a portion of their fishing trips. Fishermen may elect to use a department-provided observer or can contract with a National Marine Fisheries Service-certified observer company. If the fisherman elects to use the department-provided observer, then he is required to reimburse the department for this service at a rate of $100 per landing. As the average landing is approximately 40 mt, and the exvessel value of pilchards is approximately $120/mt, the average landing results in approximately $4,800 in exvessel revenue. Therefore, the cost per $100 of sales is $0.02.

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 believes that the cost of the rule on small businesses is minimal. The information obtained through at-sea sampling (includes collection of bycatch data, as well as biological samples which are used in the annual stock assessment and season-setting process) far outweighs the minimal costs of the rule on small businesses.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department held meetings with participants in the trial coastal pilchard fisheries, which were open to the public, on November 13, 2001, January 3, 2002, January 16, 2002, February 22, 2002, February 28, 2002, January 7, 2003, February 13, 2003, and March 25, 2003. At these meetings, department staff and the Sardine Advisory Board discussed the conversion of a trial fishery to an experimental fishery; specifically, the department solicited input on the appropriate number of permits and the qualifying criteria for those limited permits, and the advisory board developed recommendations for an experimental fishery for 2003.

8. A List of Industries That Will Be Required to Comply with the Rule: The purpose of the proposed rule is to convert the trial coastal pilchard commercial fishery to an experimental fishery, under which the number of participants may be limited. The category of small businesses that the rule affects is coastal pilchard purse seine fishers who are licensed by the state of Washington.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way, 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: Natural Resources Building, 1111 Washington Street, Olympia, WA 98504, on May 6, 2003, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Deb Kuttle by April 25, 2003, TDD (360) 902-2720 or (360) 902-2267.

Submit Written Comments to: Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by May 2, 2003.

Date of Intended Adoption: May 6, 2003.

April 2, 2003

Evan Jacoby

Rules Coordinator

OTS-6306.2


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

WAC 220-88C-020   Designation of the coastal pilchard fishery as an emerging commercial fishery.   (1) The director designates the coastal pilchard fishery as an emerging commercial fishery for which use of a vessel is required. It is unlawful for any person to fish for, possess, or deliver pilchard taken from Washington waters west of the Bonilla-Tatoosh line or from the waters of the Exclusive Economic Zone unless the fisher has a valid emerging commercial fishery license and a valid coastal pilchard ((trial)) experimental fishery permit, or except as otherwise provided.

(2) ((After the effective date of this section,)) The following fishery licenses may not be used to take pilchard from Washington waters west of the Bonilla-Tatoosh line or from the waters of the Exclusive Economic Zone: Baitfish lampara; baitfish purse seine; Columbia River smelt; food fish trawl -- non-Puget Sound; herring dip bag net; herring gill net; herring lampara; herring purse seine; smelt dip bag net; smelt gill net, except as provided for in chapter 220-44 WAC.

(3) ((After the effective date of this section,)) Pilchard taken from Washington waters west of the Bonilla-Tatoosh line or from the waters of the Exclusive Economic Zone may not be delivered into a Washington port under a nonlimited entry delivery license, and may not be delivered under the licenses provided for in RCW 77.65.210.

[Statutory Authority: RCW 77.12.047. 01-07-016 (Order 01-36), 220-88C-020, filed 3/13/01, effective 4/13/01.]


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

WAC 220-88C-030   Eligibility to participate in the coastal pilchard fishery.   (((1) All persons who are eligible to purchase a commercial fishery license may obtain a coastal pilchard trial fishery permit and purchase an emerging commercial fishery license.

(2) Persons who violate the terms of the coastal pilchard trial fishery permit will have the permit revoked, pursuant to appeal rights under chapter 34.05 RCW, and will be ineligible to obtain a coastal pilchard trial fishery permit for the remainder of the calendar year for which the emerging commercial fishery license is valid.)) (1) For 2003, a coastal pilchard experimental fishery permit will be issued only to a natural person who:

(a) Can demonstrate by valid Washington fish receiving tickets that at least two hundred metric tons cumulative weight of pilchard taken from Pacific Ocean waters were landed under the person's coastal pilchard trial fishery permit during the previous three calendar years (2000, 2001, and 2002);

(b) Has purchased an emerging commercial fisheries license by July 1, 2003; and

(c) Has no outstanding observer fees owed to the department for the 2000, 2001, or 2002 coastal pilchard trial fisheries.

(2) Beginning 2004, a coastal pilchard experimental fishery permit will be issued only to a natural person who:

(a) Held such a permit the previous year;

(b) Can demonstrate by valid Washington fish receiving tickets that at least five hundred metric tons (round weight) of pilchard taken from Pacific Ocean waters were landed the previous year under the person's coastal pilchard experimental fishery permit;

(c) Has purchased an emerging commercial fisheries license by April 1st for the year of issuance of the permit;

(d) Has no outstanding observer fees owed to the department; and

(e) Has returned to the department the completed pilchard experimental fishery log book for the prior year by November 15th of the prior year.

(3) Coastal pilchard experimental fishery permits may be revoked by the director for failure to comply with conditions specified in the permits, and shall be revoked if the emerging commercial fishery license is suspended. A coastal pilchard experimental fishery permit will not be renewed if the emerging commercial fishery license is revoked or future fishing privileges of the licensee are suspended.

(4) The director may issue a coastal pilchard experimental fishery permit to natural persons other than those initially qualifying under this section if one of the original permits is not renewed for any reason, provided that:

(a) The total number of permits issued by the director, including replacement permits, shall not exceed twenty.

(b) Replacement permits shall be issued to persons who had landed a minimum of five metric tons (cumulative round weight) of pilchard taken from Pacific Ocean waters in 2000, 2001, and 2002, in order from highest to lowest cumulative landing total for that period.

(c) If less than twenty permits are issued to persons who meet the minimum landing requirements, the director may offer a replacement permit by random drawing.

(5) Coastal pilchard experimental fishery permits are only valid for the year issued and expire on December 31st of the year issued with the expiration of the emerging commercial fishery license.

(6) Permit holders cannot change their vessel designation between April 1 and October 31 during each calendar year, except in an emergency and then only if allowed by the director.

[Statutory Authority: RCW 77.12.047. 01-07-016 (Order 01-36), 220-88C-030, filed 3/13/01, effective 4/13/01.]


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

WAC 220-88C-040   Coastal pilchard fishery -- Seasons and lawful catch.   (1) The coastal pilchard fishery season is open to purse seine fishing ((only)) May 15 through October 31((, or until 15,000 metric tons of pilchard have been taken, whichever is earlier)) only. Fishing under ((a trial)) an experimental commercial fishery permit for pilchard is closed within three miles of shore.

(2) It is unlawful to retain any species taken incidental to pilchard in the coastal pilchard fishery except anchovy, mackerel, and squid. Incidental landings of Pacific mackerel cannot exceed forty-five percent, by weight, of the total landing. Any salmon encircled in the purse seine must be released prior to completion of the set, and no salmon may be landed on the fishing ((vessel's deck)) vessel.

(3) July 1 through August 31 of each year there is a daily trip limit of sixty metric tons of pilchard.

(4) The transfer of catch from one vessel to another is prohibited.

(((4))) (5) Legal purse seine gear must be aboard the vessel making the landing.

(6) Pilchard landings must be delivered to a shoreside processing facility.

[Statutory Authority: RCW 77.12.047. 01-07-016 (Order 01-36), 220-88C-040, filed 3/13/01, effective 4/13/01.]


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

WAC 220-88C-050   Coastal pilchard fishery -- Observer and sampler coverage, logbook requirements.   (1) As a condition of the ((trial)) experimental commercial fishery permit, participants in the coastal pilchard fishery are required to have on-board observers for any pilchard fishing effort, and are required to have observer coverage for one-half of the vessel trips. Fishers may elect to use either department-provided observers, or ((NMFS)) National Marine Fisheries-certified observers, but must notify the department of their irrevokable decision on which type of observer to use at least 48 hours before their first pilchard fishing trip of the season. NMFS-certified observers must have completed a department training session. Department-provided observer coverage will be made available to fishers who agree to reimburse the department at a rate of $100 per landing, whether or not the vessel trip was observed. Payment for department-provided observer coverage is due by the tenth day of the following month for the previous month's landings, and failure to make timely payment will result in revocation of the ((trial)) experimental commercial fishery permit.

(2) In order to allow sufficient time for observer coverage and sampling efforts, fishers must notify the department's ((marine fish division)) sardine hotline during normal business hours at least 48 hours before the first vessel trip and at least 24 hours before each subsequent trip. Fishers must provide name and contact phone number, time and location of departure, and estimated time and location of landing. Up to 500 sardine per vessel trip may be retained by WDFW samplers for biological information.

(3) All persons who obtain ((a trial)) an experimental commercial fishery permit for the coastal pilchard fishery must complete a department-issued logbook, and the logbook is required to be returned to the department by November 15th of the year of issuance. ((Failure to submit the logbook will cause the person to be ineligible for a permit in the following season.))

[Statutory Authority: RCW 77.12.047. 01-07-016 (Order 01-36), 220-88C-050, filed 3/13/01, effective 4/13/01.]

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