WSR 97-24-088

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

(Fisheries)

[Filed December 2, 1997, 4:36 p.m.]

Original Notice.

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

Title of Rule: Commercial fishing rules.

Purpose: Amend Puget Sound and coastal waters crab harvest rules.

Statutory Authority for Adoption: RCW 75.08.080.

Statute Being Implemented: RCW 75.08.080.

Summary: Set seasons and special management areas, limit the number of crab pots per vessel in certain areas, provide for a fair start provisions during soft-shell crab conditions, and provide rules to implement recent legislation on license stacking provisions.

Reasons Supporting Proposal: Comply with the 1997 fishery management agreements with the coastal and Puget Sound treaty tribes; meet the reciprocal agreements of the Tri-State Dungeness Crab Committee Agreement; and comply with the legislative intent to allow license stacking on Puget Sound commercial crab vessels.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Bruce Crawford, 1111 Washington Street, Olympia, (360) 902-2325; and Enforcement: Ron Swatfigure, 1111 Washington Street, Olympia, (360) 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: Proposed changes to WAC 220-56-040 would enable crab fishers with two licenses to use 200 pots per vessel and establish pot limits for Discovery Bay and Sequim Bay. These changes would enable recent legislation regarding fishing two licenses from one vessel and help to maintain recreational opportunity in two bays with limited crab resources.

Proposed changes to WAC 220-56-046 would modify noncommercial crab fishing area descriptions and, increase the season in one area. These changes would simplify area descriptions and comply with recent state/tribal management agreements made pursuant to the federal court order on tribal shellfish fishing rights.

Proposal Changes the Following Existing Rules: WAC 220-56-040, pot limit per vessel would increase from 100 to 200, provided owner has two licenses. A ten pot per fisher limit in Discovery Bay and a ten pot per fisher limit for Sequim Bay would be established.

WAC 220-56-046, a closed area near Everett would be opened to commercial fishing and an area between Everett and Mukilteo would be closed to commercial fishing. The boundary description of a closed area in Skagit Bay would be simplified. The opening date of the commercial season in the outer portion of Birch Bay would change from November 7 to October 1.

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

Puget Sound Commercial Crab Fishing Rules: WAC 220-52-040 and 220-52-046.

1. Description of the Reporting, Recordkeeping, 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? Pot limit reductions in Discovery Bay and Sequim Bay may cause some of the approximately 260 Puget Sound commercial crab fishers to move some pots to new areas. However, other proposed rule changes contained in this package will increase season length in a portion of Birch Bay, reduce the size of a closed area in Skagit Bay, and increase the allowable number of pots per vessel from 100 to 200. A new closed area is proposed in exchange for reopening a formerly closed area. The formerly closed area has historically contained more crab than the area proposed for closing. In combination the proposed changes will result in a net economic benefit to commercial crab fishers.

5. Cost of Compliance for the Ten Percent 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; n/a

b. Cost per hour of labor; or n/a

c. Cost per one hundred dollars of sales. n/a

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: No additional costs expected.

7. A Description of How the Agency will Involve Small Businesses in the Development of the Rule: The agency engaged in extensive discussions with representatives of the Puget Sound commercial crab industry before the proposals were drafted. Most of the proposed rule changes were supported.

8. A List of Industries that will be Required to Comply with the Rule: Puget Sound commercial crab fishers.

1. Description of the Reporting, Recordkeeping, 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(s) Cause Businesses to Lose Sales or Revenue? Yes, in the aggregate, the nontreaty Grays Harbor crab fleet will harvest the same amount of crab relative to abundance during the season. The intent of the pot limit is to reduce the early season harvest pace and to meet state-tribal allocation objectives. For the coastal fleet as a whole, there will be a general loss of 500,000 to 1,000,000 pounds of crab as this product will be reallocated to tribal fishers to meet the intent of the federal court decision on treaty shellfish rights - this will not affect the total value of the catch landed in Washington.

5. Cost of Compliance for the Ten Percent 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: None.

a. Cost per employee; na

b. Cost per hour of labor; or

c. Cost per one hundred dollars of sales. na

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: None taken; see 4. above.

7. A Description of How the Agency will Involve Small Businesses in the Development of the Rule: Coastal crab fishers and processors in the coastal crab advisory group participated with the Washington Department of Fish and Wildlife throughout the 1997 state/tribal negotiating process to develop the Dungeness crab management plan.

8. A List of Industries that will be Required to Comply with the Rule: Non-Indian coastal crab fishers.

A copy of the statement may be obtained by phoning (360) 902-2930, or FAXing (360) 902-2944.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Not hydraulics 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, Washington Department of Fish and Wildlife, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501, FAX (360) 902-2930, by December 4, 1997 [January 14, 1998].

Date of Intended Adoption: January 24, 1998.

December 2, 1997

Evan Jacoby

Rules Coordinator

AMENDATORY SECTION (Amending Order 97-55, filed 3/31/97, effective 5/1/97 WAC 220-52-040 Crab fishery--Lawful and unlawful. (1) It is unlawful for any vessel geared or equipped with commercial net fishing gear to have aboard any quantity of crab while fishing with said gear or having commercially caught food fish or other species of shellfish aboard.

(2) 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 at any time when it is unlawful to take or fish for crabs for commercial purposes therein.

(3) It is unlawful to have in the water any baited or unbaited shellfish pots or ring nets for taking crabs for commercial purposes, in any area at any time when it is unlawful to take or fish for crabs for commercial purposes therein: Provided, That following the close of a commercial crab season, permission may be granted by the director on a case-by-case basis for fishermen to recover shellfish pots that have become irretrievable due to extreme weather conditions. Fishermen must apply to ((fisheries patrol)) department enforcement for such permission within twenty-four hours prior to the close of season.

(4) It is unlawful for any person to take, or possess for commercial purposes female Dungeness crabs, or male Dungeness crabs measuring less than 6-1/4 inches, caliper measurement, across the back immediately in front of the tips.

(5) It is unlawful for any person to take or fish for crabs for commercial purposes in the Puget Sound licensing district with more than 100 shellfish pots or ring nets in the aggregate for each license owned, and it shall be unlawful for any ((group of persons using the same vessel)) person to take or fish for crabs for commercial purposes in Puget Sound with more than ((100)) 200 shellfish pots or ring nets in the aggregate from one vessel, provided it shall be unlawful for any person, or group of persons using the same vessel, to take or fish for crabs for commercial purposes with more than 20 shellfish pots or ring nets in the aggregate 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) It is unlawful for any person to take or fish for Dungeness crabs for commercial purposes in the Puget Sound licensing district with more than 20 pots per groundline, and it shall be unlawful to use or operate a groundline unless such gear meets the following requirements:

(a) A buoy, staff, flag, and radar reflector must be attached at each end of the groundline;

(b) Flags attached at each end of the groundline must be orange in color;

(c) Buoys attached at each end of the groundline must be marked in a visible and legible manner with the department of fish and wildlife approved and registered buoy brand issued to the license;

(d) Buoys attached at each end of the groundline must be marked with the number of pots attached to the groundline; and

(e) Staffs with attached flags at each end of the groundline must be at least four feet above the water surface.

(7) The following Marine Fish-Shellfish Management and Catch Reporting Areas are restricted in the number of pots fished from a vessel.

(a) It is unlawful for any person to take or fish for Dungeness crabs for commercial purposes using more than 10 pots in Marine Fish-Shellfish Management and Catch Reporting Area 25E.

(b) It is unlawful for any person to take or fish for Dungeness crabs for commercial purposes using more than 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) It is unlawful for any person to fish for Dungeness crabs for commercial purposes using more than 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.

(8) In coastal waters, Grays Harbor, Willapa Bay and the Columbia River no crab pot gear may be attached or connected to other crab pot gear by a common groundline or any other means.

(((8))) (9) 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 ((of fisheries)) personnel not earlier than twelve hours prior to the opening of the coastal crab season and during the following thirty-day period.

(10) 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, and 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.

[Statutory Authority: RCW 75.08.080. 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), 220-52-040,1; 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 97-55, filed 3/31/97, effective 5/1/97 WAC 220-52-046 Crab fishery--Seasons and areas. It is unlawful to fish for or possess Dungeness crabs taken for commercial purposes except during the lawful open seasons and areas as follows:

(1) All Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas are open beginning 8:00 a.m. October 1st through the following April 15th and, after October 1, one-half hour before sunrise to one-half hour after sunset, except Areas 25C, 26B, 26C, 26D, 27A, 27B, 27C, 28A, 28B, 28C, and 28D and the closures provided for in this section.

(2) The following areas are closed to non-Indian commercial crab fishing:

(a) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 20A between a line from the boat ramp at the western boundary of Birch Bay State Park to the western point of the entrance of the Birch Bay Marina and a line from the same boat ramp to Birch Point are closed ((October 1 through November 7 and)) March 1 through April 15.

(b) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 20A in Lummi Bay east of a line projected from the entrance buoy at Sandy Point to Gooseberry Point.

(c) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 21A in Bellingham Bay west of a line projected from the exposed boulder at Point Francis to the pilings at Stevie's Point.

(d) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24A east of lines projected north from the most westerly tip of Skagit Island and south to the most westerly tip of Hope Island, thence southeast to Seal Rocks, thence southeast to the green can buoy at the mouth of Swinomish Channel, thence easterly to the west side of Goat Island.

(e) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24B inside a line projected from Priest Point to the five-meter tower between Gedney Island and Priest Point, thence northwesterly on a line between the five-meter tower and Barnum Point to the intersection with a line projected true west from Kayak Point, thence east to shore.

(f) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24B north of a line projected true west from Kayak Point and south and west of a line from Kayak Point to Barnum Point.

(g) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 25A west of a line from the new Dungeness Light to the mouth of Cooper Creek are closed through November 15th of each year ((and when open there is a 30 pot per vessel limit in these waters)).

(h) ((Those waters of Marine Fish-Shellfish Management and Catch Reporting Areas 26B, 26C, and 26D.

(i))) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 25D within a line projected from the Point Hudson Marina entrance to the northern tip of Indian Island, thence to Kala Point, and thence following the shoreline to the point of origin.

(3) The following areas are closed to commercial crab fishing during the periods indicated:

(a) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24C inshore of the 400 foot depth contour within an area bounded by parallel lines projected northeasterly from Sandy Point and the entrance to the marina at Langley are closed October 1 through October 31, and March 1 through April 15 of each year.

(b) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 26A in Useless Bay north and east of a line from Indian Point to a point on shore 1.5 miles northeast of Double Bluff are closed October 1 through October 31, and March 1 through April 15 of each year.

(c) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 21B inside lines from Oyster Creek to the fisheries monument on Samish Island and from Oyster Creek to Point Williams are closed shoreward of the ten fathom contour October 1 through October 31, and March 1 through April 15 of each year.

(d) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22B in Fidalgo Bay south of a line projected from the red number 4 entrance buoy at Cap Sante Marina to the northern end of the eastern most oil dock are closed October 1 through October 31, and March 1 through April 15 of each year.

(4) The following areas are closed to commercial crab fishing until further notice:

(a) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24A within a line projected ((.4 nautical miles due northwest)) from Rocky Point((, thence)) northeast to the red number 2 buoy, thence to Brown Point.

(b) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24D south of a line from Dines Point to the point just north of Beverly Beach.

(c) Those waters of Marine Fish-Shellfish Management and Catch Reporting ((Areas 24B and)) Area 26A ((inside lines)) south and east of a line projected from ((the five-meter tower between Gedney Island and Priest Point to the north tip of Jetty Island and from the five-meter tower to the Rucker Hill radio tower at Pigeon Creek No. 1)) the 3A buoy at the Snohomish River mouth to the outermost tip of the ferry dock at Mukilteo.

(d) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 26A within a line from the green number 1 buoy at Scatchet Head to the green number 1 buoy at Possession Point thence following the 200 foot contour to a point due east from the Glendale Dock.

(e) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 21B in Samish Bay south of a line from Oyster Creek to the fisheries management monument on Samish Island.

(f) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Westcott and Garrison Bays east of a line projected due south from Point White to San Juan Island.

(g) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 20A in Birch Bay east of a line projected from the boat ramp at the western boundary of Birch Bay State Park to the western point of the entrance to the Birch Bay Marina.

(h) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 21A shoreward of the ten-fathom (MLLW) contour in Chuckanut Bay.

(i) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Blind Bay south of a line projected due west from Point Hudson to Shaw Island.

(j) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Deer Harbor north of a line projected from Steep Point to Pole Pass.

(k) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Fisherman Bay south of a line projected east-west through the red number 4 entrance buoy.

(l) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A in Mud Bay south of a line projected from Lopez Island through Crab and Fortress Islands to Lopez Island.

(m) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22B in Padilla Bay within a line projected from the northern end of the eastern most oil dock to the red number 2 buoy, thence southeasterly to the red number 8 buoy, thence west to shore.

(n) All waters in the San Juan Islands Marine Preserve Area.

(5) Coastal, Pacific Ocean, Grays Harbor, Willapa ((Harbor)) Bay and Columbia River waters - open December 1 through September 15 except that it is lawful to set baited crab gear beginning at 8:00 a.m. November 28 unless the coastal crab fishery is delayed due to softshell crab conditions, in which case the following provisions apply:

(a) After consultation with the Oregon Department of Fish and Wildlife, the director ((will)) may, by emergency rule, establish ((the)) a softshell crab demarcation line.

(b) ((It is unlawful for a fisher to fish north of the softshell crab demarcation line for the first thirty days following the opening of a delayed season unless the fishery license holder or primary operator certifies that the vessel designated for use on that license did not participate in the coastal crab fishery south of the softshell crab demarcation line during the previous forty-five days. This certification is an instrument for purposes of RCW 40.16.030.)) For waters of the Pacific Ocean north of Point Arena, California, it is unlawful for a person to use a vessel to fish in any area for which the season opening has been delayed due to softshell crab for the first thirty days following the opening of such an area if the vessel was employed in the coastal crab fishery during the previous forty-five days.

(c) Fishers may not set crab gear ((north of the softshell crab demarcation line)) in any area where the season opening has been delayed more than sixty-four hours in advance of the season opening time.

(d) It is unlawful to fish for or possess Dungeness crabs or to set crab gear in waters of the Pacific Ocean adjacent to the states of Oregon or California except during the lawful open seasons, areas and times specified by the individual states.

(6) The following areas (Special Management Area; SMA's) are closed to non-Indian commercial crab fishing during the periods indicated:

(a) Those waters bounded by lines projected between the following coordinates:

Southern SMA Description:

NW corner: 4709.00'N 12423.80'W (LORAN 41885)

NE corner: 4709.00'N 12416.30'W

SW corner: 4658.00'N 12422.00'W (LORAN 41885)

SE corner: 4658.00'N 12415.30'W

Northern SMA Description:

NW corner: 4732.00'N 12434.00'W (LORAN 41865)

NE corner: 4732.00'N 12429.50'W (LORAN 41880)

SW corner: 4727.00'N 12433.00'W (LORAN 41865)

SE corner: 4727.00'N 12428.60'W (LORAN 41880)

The non-Indian fishery will be closed within these areas through January 4, 1998. The areas will open to the non-Indian fishery on January 5, 1998, and remain open through September 15, 1998. The non-Indian fishery will be closed within these areas December 1, 1998, through January 4, 1999. The areas will open to the non-Indian fishery on January 5, 1999, and remain open through September 15, 1999.

(b) Those waters between 4740.50'N (Destruction Island) north to 4802.25'N, east of a line (to the coastline) described by the following points:

Southern point: 4740.50'N 12437.50'W

Central point: 4800.00'N 12449.50'W

Northern point: 4802.25'N 12450.00'W

This area is closed to non-Indian fishing through January 7, 1998. It will reopen to non-Indian fishing on January 8, 1998, and close on February 5, 1998. This area will reopen on March 28, 1998, and remain open through September 15, 1998. This area is closed to non-Indian fishing from December 1, 1998, through January 7, 1999. It will reopen to non-Indian fishing on January 8, 1999, and close on February 5, 1999. This area will reopen on March 28, 1999, and remain open through September 15, 1999.

(c) Those waters east of a line approximating the 25 fathom curve, from 4802.15'N 12450'00"W to 4807'36"N 12451'24"W to 4820'00"N 12450'00"W to Cape Flattery. This area will close to non-Indian fishing December 29, 1997, (after 28 days of fishing) and remain closed through March 31, 1998. The area will reopen on April 1, 1998, and remain open through September 15, 1998.