WSR 97-20-068

EMERGENCY RULES

DEPARTMENT OF

FISH AND WILDLIFE

(Fisheries)

[Order 97-201--Filed September 25, 1997, 4:48 p.m., effective October 1, 1997, 12:01 a.m.]

Date of Adoption: September 25, 1997.

Purpose: Commercial fishing regulations.

Citation of Existing Rules Affected by this Order: Amending WAC 220-52-040 and 220-52-046.

Statutory Authority for Adoption: RCW 75.08.080.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The closures in this emergency rule are necessitated by federal court order. The state may not authorize commercial shellfish harvests absent agreed planning or compliance with a process. Agreed plans with applicable tribes have been entered as required by the court order. Such plans have the effect of a federal court order. 898 F. Supp 1453, 1466, 3.1. Pursuant to RCW 34.04.350 [34.05.350], the need to comply with such federal court orders in the form of allocative management plans constitutes an emergency that requires bypassing the time periods inherent in permanent rule making. Failure to comply with such plans may result in contempt of federal court or failure of all commercial crab fishing in a given region addressed by a plan. There is insufficient time to promulgate permanent rules.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 2, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: October 1, 1997, 12:01 a.m.

September 25, 1997

Bern Shanks

Director

NEW SECTION

WAC 220-52-04600V Crab fishery--Seasons, areas and gear restrictions. Notwithstanding the provisions of WAC 220-52-046, it is unlawful to fish for Dungeness crab for commercial purposes in Puget Sound except during the times and in the areas provided for in this section.

(1) All Puget Sound Marine Fish/Shellfish Management and Catch Reporting Areas are open beginning 8:00 a.m. October 1, 1997 until further notice, 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 in Lummi Bay east of a line projected from the entrance buoy at Sandy Point to Gooseberry Point.

(b) 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 Frances to the pilings at Stevie's Point.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 25D within a line from the Point Hudson Marina entrance to the northern tip of Indian Island, thence to Kala Point, 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 from October 1 through October 31, 1997.

(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 from October 1 through October 31, 1997.

(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 from October 1 through October 31, 1997.

(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 from October 1 through October 31, 1997.

(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 northeast from Rocky Point, 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 26A south and east of a line projected from 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) In all open areas as provided for in this section, it is unlawful to pull or set commercial crab gear from one-half hour after sunset to one-half hour before sunrise.

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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.

NEW SECTION

WAC 220-52-04000E Crab fishery--Lawful and unlawful. Notwithstanding the provisions of WAC 220-20-010 and WAC 220-52-040, effective immediately until further notice:

(1) 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;

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

(2) Notwithstanding the provisions of RCW 75.28.048(4) 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 eighty pots in the combined waters of Marine Fish Shellfish Management and Catch Reporting Areas 23A, 23B, 23C, 23D, 25A, 25E and 29.

(b) 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.

(c) 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.

(3) Current Puget Sound crab/pot buoy brand certificate is not required to fish for Dungeness crab in Puget Sound.