WSR 98-21-090

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[Filed October 21, 1998, 11:53 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-17-087.

Title of Rule: Commercial fishing rules.

Purpose: Amend coastal Dungeness crab harvest rules.

Statutory Authority for Adoption: RCW 75.08.080.

Statute Being Implemented: RCW 75.08.080.

Summary: Restrict commercial effort to within four miles of the Washington coast from July 1 through September 15.

Reasons Supporting Proposal: Historical data show that fishing during the crab recruit molt period damages the resource because softshell crab are discarded at sea, and after handling and discard many do not survive. Fishing effort restrictions are needed to minimize wastage of the resource. Additionally, a deep water closure will minimize the risk to fishers and processors of being cited for possessing crabs that do not meet the legal standard of hard-shell definition.

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 220-52-046 would provide softshell crab regulatory measures for the summer crab fishery, which are consistent with softshell management measures applied for the December opener. Historically, in five out of six seasons softshell crab during the summer period present management and enforcement problems. The outside four-mile restriction allows the summer fishery to continue in-shore, yet, avoids the deeper waters where an abundance of new recruit-softshell crab are most likely to occur. In addition to reducing wastage, it keeps the fleet from overharvesting next season's recruits which promotes even flow harvesting (a legislative policy) and facilitates the harvest of a quality product.

Proposal Changes the Following Existing Rules: Currently, there are no area restrictions during the summer fishery period. The fishery is wide open until the normal fishery closure of September 15. The regulation restricts the effort to within four miles of the coast from July 1 through September 15. It limits the total fishing grounds for vessels that crab during the summer period.

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

Small Business Economic Impact Statement

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? Forty to fifty crab vessels fish during the summer period, after July 1. Some of these vessels normally fish outside the four-mile zone. Crab are more abundant in the deeper waters but usually are soft-shelled and represent the new recruit crab for the upcoming December fishery opener. The closure of the off-shore area will reduce revenue for those vessels if landings cannot be replaced from in-shore open areas; however, the crab not caught during the closure area/period will be available for harvest once the fishery reopens in December. The area closure impact represents more of a shift in revenue producing period than a loss of revenue. The potential range of revenue lost by the forty to fifty vessels is minimal, probably from 0% to 10% of their summer revenue. The respective dollar loss ranges from $0 to $5,000 per vessel as a worst case scenario.

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. Costs per employee--$0 to $800. b. Cost per hour of labor; or NA. c. Costs 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: The department carefully analyzed the harvest log information to determine the depth and timing stratification of the soft-shelled crab problem and used that information to preserve an in-shore crab fishery as an alternative to a total seasonal closure.

7. A Description of How the Agency will Involve Small Businesses in the Development of the Rule: Coastal crab fishers, processors and the coastal crab advisory group met with the Washington Department of Fish and Wildlife throughout the 1997/98 season. The Washington Department of Fish and Wildlife mailed letters in June 1998 to all licensed coastal crabbers regarding the rule change. The department will hold a public workshop in November and a public hearing in December.

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

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) 902-2940.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Not hydraulic rules.

Hearing Location: DoubleTree Hotel, Seattle Airport, 18740 Pacific Highway South, Seattle, WA, on December 4-5, 1998, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Robin Ayers by November 16, 1998, TDD (360) 902-2295, or (360) 902-2923.

Submit Written Comments to: Evan Jacoby, Washington Department of Fish and Wildlife, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501, fax (360) 902-2940, by December 3, 1998.

Date of Intended Adoption: December 5, 1998.

October 21, 1998

Evan Jacoby

Rules Coordinator

OTS-2634.1

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

WAC 220-52-046  Crab fishery--Seasons and areas. "Commercial crab fishing" means any taking, fishing, use, or operation of gear to fish for crabs for commercial purposes, and shall include the possession of crab on the water for commercial purposes, and the landing or initial delivery of crab for commercial purposes.

The lawful open times and areas for commercial crab fishing are as follows:

(1) All Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas are open for commercial crab fishing 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:

(a) Areas 25C, 26B, 26C, 26D, 27A, 27B, 27C, 28A, 28B, 28C, and 28D are not open to commercial crab fishing; and

(b) The areas and times provided by other subsections below are not open to commercial crab fishing.

(2) The following areas are closed to commercial crab fishing except for treaty Indian commercial crab fishing where the treaty Indian crab fisher is following tribal openings that are in accordance with provisions of court orders in United States v. Washington:

(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 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.

(h) 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.

(e) Those waters of Marine Fish-Shellfish Management and Catch Reporting Area 24A in Coronet Bay south of a line projected true east and west from the northernmost tip of Ben Ure Island 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 from Rocky Point 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 Area 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) Coastal, Pacific Ocean, Grays Harbor, Willapa Bay and Columbia River waters are open to commercial crab fishing December 1 through September 15 except that it is lawful to set baited crab gear beginning at 8:00 a.m. November 28. However, the department may delay opening of the coastal crab fishery due to softshell crab conditions, in which case the following provisions will apply:

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

(b) 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 in any area where the season opening has been delayed, except that gear may be set as allowed by emergency rule and shall allow setting sixty-four hours in advance of the delayed 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 commercial crab fishing during the periods indicated, except for treaty Indian commercial crab fishing where the treaty Indian crab fisher is following tribal openings that are in accordance with provisions of court orders in United States v. Washington:

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

((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, except as provided for in (d) of this subsection.

(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:

((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, except as provided for in (d) of this subsection.

(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.

(d) It is unlawful to place gear, fish for or take Dungeness crab for commercial purposes in the following area from July 1 through September 15:

Those waters west of straight lines drawn in sequence from south to north between the following coordinates:

[Statutory Authority: RCW 75.08.080. 98-19-012 (Order 98-185), § 220-52-046, filed 9/4/98, effective 10/5/98; 98-05-043, § 220-52-046, filed 2/11/98, effective 3/14/98; 97-08-052 (Order 97-55), § 220-52-046, filed 3/31/97, effective 5/1/97; 94-12-009 (Order 94-23), § 220-52-046, filed 5/19/94, effective 6/19/94; 93-15-051, § 220-52-046, filed 7/14/93, effective 8/14/93; 91-10-024 (Order 91-22), § 220-52-046, filed 4/23/91, effective 5/24/91; 87-05-038 (Order 87-08), § 220-52-046, filed 2/18/87; 85-01-010 (Order 84-214), § 220-52-046, filed 12/7/84; 84-08-014 (Order 84-24), § 220-52-046, filed 3/27/84; 83-01-026 (Order 82-221), § 220-52-046, filed 12/8/82; 80-13-064 (Order 80-123), § 220-52-046, filed 9/17/80; Order 76-152, § 220-52-046, filed 12/17/76; Order 1179, § 220-52-046, filed 11/19/74; Order 1112, § 220-52-046, filed 4/15/74; Order 1057, § 220-52-046, filed 5/22/73; Order 920, § 220-52-046, filed 5/13/71; Order 807, § 220-52-046, filed 1/2/69, effective 2/1/69. Formerly WAC 220-52-040 (2), (3), (4) and (9).]