Original Notice.

Preproposal statement of inquiry was filed as WSR 01-12-080.

Title of Rule: Commercial fishing rules.

Purpose: Provide for crab pot limit increase because of extenuating circumstances.

Statutory Authority for Adoption: Chapter 228, Laws of 2001, RCW 77.12.047.

Statute Being Implemented: Chapter 228, Laws of 2001.

Summary: The department is redefining "extenuating circumstances" and providing an opportunity for coastal crab fishers to appeal the crab pot limit assignment.

Reasons Supporting Proposal: Chapter 228, Laws of 2001, directs the department to consider extenuating circumstances in assigning pot limits.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 600 Capitol Way North, Olympia, 902-2930; Implementation: Jim Lux, 600 Capitol Way North, Olympia, 902-2444; and Enforcement: Bruce Bjork, 600 Capitol Way North, Olympia, 902-2373.

Name of Proponent: Washington State 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: Following the assignment of crab pot limits, the 2001 legislature acted to require the department to consider "the provisions of RCW 77.70.390" with respect to the consideration of "extenuating circumstances." In the years since the original adoption of the definition of extenuating circumstances in 1990, both administrative law decisions and case law have modified the definition. The department is proposing to amend the definition of extenuating circumstances, using the case law and administrative law, and then apply the definition to persons who appeal the crab pot limit assignment. By providing a thirty day appeal period, it is hoped that some finality can occur before the beginning of the 2001-2002 winter coastal crab fishery.

Proposal Changes the Following Existing Rules: Changes definition of extenuating circumstances. Also changes appeal period to thirty days from when the amended coastal crab pot limit rules take effect.

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

Proposed Regulatory Amendments: The Department of Fish and Wildlife is proposing amendments to WAC 220-16-410 Definition -- Extenuating circumstances, and to WAC 220-52-040 Commercial crab fishery.

The department is proposing to amend the general definition and apply that definition to coastal crab fisher's appeals.

Economic Impact of the Proposed Amendments to WAC 220-16-410: The Department of Fish and Wildlife used the following process in evaluating the economic impact of the proposed amendments to WAC 220-16-410:

1. Determine the categories of business that must comply with the proposed regulations.

2. Determine the employment profile of businesses affected by the proposed regulation.

3. Determine the "more than minor" cost threshold for each category of business.

4. Determine whether the estimated cost exceeds the "more than minor" cost threshold for each category of business.

5. Determine whether the proposed regulations impose a disproportionate cost burden on small businesses.

6. Miscellaneous SBEIS requirements.

1. Which businesses must comply with the proposed regulation? An appeal based on extenuating circumstances is voluntary. There is no compliance requirement.

2. What is the employment profile of businesses affected by the proposed regulation? To the Department of Fish and Wildlife's knowledge, all coastal Dungeness crab commercial fishing operations are businesses with fewer than fifty employees and are "small businesses" as that term is defined in the Regulatory Fairness Act (RFA), RCW 19.85.02091).

3. What are the "more than minor" cost thresholds for businesses affected by the proposed regulation? An SBEIS is required if a proposed regulation will impose "more than minor" costs on businesses in an industry. An industry is defined as all of the businesses in this state in any one four-digit standard industrial classification as published by the United States Department of Commerce. The "more than minor" threshold ranges from $50 to $300 depending on what standard industrial code category the business falls into. This SBEIS uses $50.00 as the benchmark between minor and "more than minor" costs.

4. Do the costs imposed by the proposed rule exceed the "more than minor" cost threshold? There are no mandatory costs. If a fisher successfully appeals, the fisher may elect to increase the number of pots fished. If the fisher does so, there will be a cost for pots and pot tags. However, since the increase in gear is a voluntary act by the fisher, the rule imposes no costs.

A complete discussion of the number of pots fished and the impact to the crab industry is outlined in the SBEIS for WAC 220-52-040.

5. Does the proposed regulation impose a disproportionate cost burden on small businesses? Since all coastal Dungeness crab fishers are by definition small businesses there are no large businesses within this industry required to comply with the proposed amendments to this rule. Consequently, small businesses are not disproportionately impacted by the proposed amendments to the rules.

6. Miscellaneous SBEIS requirements:

a. How did the Department of Fish and Wildlife involve affected businesses and other interested parties in the development of this rule? The adding of extenuating circumstances to the pot limit regulations is at the direction of the legislature, which held hearings on the legislation that imposes this requirement.

b. What are the reporting, record-keeping, and other compliance requirements, and what professional services is a small business likely to need in order to comply with the requirements of the proposed rule? Compliance requirements would be the same if a fisher were assigned three hundred or five hundred pots. There would be a cost associated with the purchase of additional pots and pot tags (if the fisher did not already own them) to fish the maximum number of pots. A small business should not need any additional professional services to comply with the requirements of the proposed rule.

c. Will the proposed rule cause businesses to lose sales or revenue? Revenue for a crab fisher is based on many different factors, the number of pots fished may affect the revenue of one fisher while at the same time have no affect on another. These issues are discussed in detail in the SBEIS completed for changes to WAC 220-52-040 which describes the assessment of the potential economic impact of pot assignments on the coastal Dungeness crab fleet.

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: Natural Resources Building, Room 172, 1111 Washington Street, Olympia, on September 14, 2001, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by September 1, 2001, 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 September 13, 2001.

Date of Intended Adoption: September 14, 2001.

August 1, 2001

Evan Jacoby

Rules Coordinator

OTS-5053.1

AMENDATORY SECTION(Amending Order 90-05, filed 1/19/90, effective 2/19/90)

WAC 220-16-410   Definition -- Extenuating circumstances.   "Extenuating circumstances" for purposes of this title mean unforeseeable circumstances ((that lessen the seriousness or magnitude of an act, and which are to be considered in determining if an individual is to be granted extraordinary relief. Such personal characteristics as age, education, fishing experience, and physical capability, as well as other personal characteristics, and such physical circumstances as weather, age of vessel, and vessel propulsion mechanism, as well as other physical circumstances, may be considered when reviewing a set of facts for extenuating circumstances)) beyond the control of a person that are proximate to a result requiring extraordinary relief.

(2) Elective decisions are not extenuating circumstances, and include, but are not limited to:

(a) Participation or nonparticipation in an enterprise or venture;

(b) Hiring and personnel decisions;

(c) Business considerations, including allocation of financial resources, except as otherwise provided in Title 77 RCW;

(d) All matters dealing with catch effort, including gear, species, area, timing, deliveries; and

(e) Any other circumstance resulting from choice or freewill.

(3) Equipment failure is not an extenuating circumstance if the failure was objectively foreseeable when the equipment was acquired.

[Statutory Authority: RCW 75.08.080. 90-03-068 (Order 90-05), 220-16-410, filed 1/19/90, effective 2/19/90; 89-15-032 (Order 89-61), 220-16-410, filed 7/14/89.]

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-5052.1

AMENDATORY SECTION(Amending Order 01-74, filed 5/3/01, effective 6/3/01)

WAC 220-52-040   Commercial crab fishery -- Lawful and unlawful gear, methods, and other unlawful acts.   (1) Net fishing boats shall not have crab aboard. It is unlawful for any vessel geared or equipped with commercial net fishing gear to have aboard any quantity of crab while it is fishing with the net gear or when it has other food fish or shellfish aboard for commercial purposes.

(2) Area must be open to commercial crabbing. 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 or at any time when the location is not opened for taking crabs for commercial purposes by permanent rule or emergency rule of the department: Provided, That following the close of a commercial crab season, permission may be granted by the director or his or her designee on a case-by-case basis for crab fishers to recover shellfish pots that were irretrievable due to extreme weather conditions at the end of the lawful opening. Crab fishers must notify and apply to department enforcement for such permission within twenty-four hours prior to the close of season.

(3) Crabs must be male and 6-1/4 inches. It is unlawful for any person acting for commercial purposes to take, possess, deliver, or otherwise control:

(a) Any female Dungeness crabs; or

(b) Any male Dungeness crabs measuring less than 6-1/4 inches, caliper measurement, across the back immediately in front of the tips.

(4) Each person and each Puget Sound license limited to 100 pots. It is unlawful for any person to take or fish for crab for commercial purposes in the Puget Sound licensing district using, operating, or controlling any more than an aggregate total of 100 shellfish pots or ring nets. This limit shall apply to each license. However, this shall not preclude a person holding two Puget Sound crab licenses from designating and using the licenses from one vessel as authorized by RCW 75.28.048(4).

(5) Additional area gear limits. The following Marine Fish-Shellfish Management and Catch Reporting Areas are restricted in the number of pots fished, operated, or used by a person or vessel and it is unlawful for any person to use, maintain, operate, or control pots in excess of the following limits:

(a) 10 pots in Marine Fish-Shellfish Management and Catch Reporting Area 25E.

(b) 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) 20 pots in that portion of Marine Fish-Shellfish Management and Catch Reporting Area 25A west of a line projected from the new Dungeness Light to the mouth of Cooper Creek and east of a line projected from the new Dungeness Light to the outermost end of the abandoned dock at the Three Crabs Restaurant on the southern shore of Dungeness Bay.

(d) 10 pots in that portion of Marine Fish-Shellfish Management and Catch Reporting Area 23D west of a line from the eastern tip of Ediz Hook to the I77 Rayonier Dock.

(6) Groundline gear is unlawful. No crab pot or ring net may be attached or connected to other crab pot or ring net by a common groundline or any other means that connects crab pots together.

(7) Puget Sound crab pots must be tagged. In Puget Sound it is unlawful to place in the water, pull from the water, possess on the water, or transport on the water any crab pot without a pot tag that meets the requirements of WAC 220-52-043.

(8) Puget Sound - No person can possess or use gear with other person's tag. In Puget Sound no person may possess, use, control, or operate any crab pot not bearing a tag identifying the pot as that person's, except that an alternate operator designated on a primary license may possess and operate a crab pot bearing the tag of the license holder.

(9) Cannot tamper with pot tags. No person shall remove, damage, or otherwise tamper with crab pot tags except when lawfully applying or removing tags on the person's own pots.

(10) Thirty-day period when it is unlawful to buy or land crab from ocean without crab vessel inspection. 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 personnel not earlier than twelve hours prior to the opening of the coastal crab season and during the following thirty-day period.

(11) Grays Harbor pot limit of 200. 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. 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.

(12) Coastal crab pot limit.

(a) It is unlawful for a person to take or fish for Dungeness crab for commercial purposes in Grays Harbor, Willapa Bay, the Columbia River, or waters of the Pacific Ocean adjacent to the state of Washington unless a shellfish pot limit has been assigned to the Dungeness crab-coastal fishery license held by the person, or to the equivalent Oregon or California Dungeness crab fishery license held by the person.

(b) It is unlawful for a person to deploy or fish more shellfish pots than the number of shellfish pots assigned to the license held by that person, and it is unlawful to use any vessel other than the vessel designated on a license to operate or possess shellfish pots assigned to that license.

(c) It is unlawful for a person to take or fish for Dungeness crab or to deploy shellfish pots unless the person is in possession of valid documentation issued by the department that specifies the shellfish pot limit assigned to the license.

(13) Determination of coastal crab pot limits.

(a) The number of shellfish pots assigned to a Washington Dungeness crab-coastal fishery license, or to an equivalent Oregon or California Dungeness crab fishery license will be based on documented landings of Dungeness crab taken from waters of the Pacific Ocean south of the United States/Canada border and west of the Bonilla-Tatoosh line, and from coastal estuaries in the states of Washington, Oregon and California. Documented landings may be evidenced only by valid Washington state shellfish receiving tickets, or equivalent valid documents from the states of Oregon and California, that show Dungeness crab were taken between December 1, 1996, and September 16, 1999. Such documents must have been received by the respective states no later than October 15, 1999.

(b) The following criteria shall be used to determine and assign a shellfish pot limit to a Dungeness crab-coastal fishery license, or to an equivalent Oregon or California Dungeness crab fishery license:

(i) The three "qualifying coastal Dungeness crab seasons" are from December 1, 1996, through September 15, 1997, from December 1, 1997, through September 15, 1998, and from December 1, 1998, through September 15, 1999. Of the three qualifying seasons, the one with the most poundage of Dungeness crab landed on a license shall determine the crab pot limit for that license. A crab pot limit of 300 shall be assigned to a license with landings that total from zero to 35,999 pounds and a crab pot limit of 500 shall be assigned to a license with landings that total 36,000 pounds or more.

(ii) Landings of Dungeness crab made in the states of Oregon or California on valid Dungeness crab fisheries licenses during a qualifying season may be used for purposes of assigning a shellfish pot limit to a Dungeness crab fishery license, provided that documentation of the landings is provided to the department by the Oregon Department of Fish and Wildlife and/or the California Department of Fish and Game. Landings of Dungeness crab made in Washington, Oregon, and California on valid Dungeness crab fishery licenses during a qualifying season may be combined for purposes of assigning a shellfish pot limit, provided that the same vessel was named on the licenses, and the same person held the licenses. A shellfish pot limit assigned as a result of combined landings is invalidated by any subsequent split in ownership of the licenses. No vessel named on a Dungeness crab fishery license shall be assigned more than one shellfish pot limit.

(iii) A license on which less than 36,000 pounds of crab had been landed during any of the three qualifying coastal Dungeness crab seasons may be granted a crab pot limit of 500 pots upon a showing that extenuating circumstances prevented the licensee from landing 36,000 pounds during each of the three qualifying coastal Dungeness crab seasons.

(14) Appeals of coastal crab pot limits. An appeal of a shellfish pot limit by a coastal commercial license holder shall be filed with the department on or before the 30th day following the ((department's assignment of a shellfish pot limit under subsection (13))) effective date of this section. The shellfish pot limit assigned to a license by the department shall remain in effect until such time as the appeal process is concluded.

(15) Coastal - Barging of crab pots by undesignated vessels. It is lawful for a vessel not designated on a Dungeness crab-coastal fishery license to be used to deploy shellfish pot gear provided that:

(a) Such a vessel may not carry aboard more than 150 shellfish pots at any one time.

(b) Such a vessel may deploy shellfish pot gear only during the 64-hour period immediately preceding the season opening date and during the 48-hour period immediately following the season opening date.

(c) The lawful owner of the shellfish pot gear must be aboard the vessel when the gear is being deployed.

(16) Coastal shellfish pot tags. It is unlawful for a person to use a shellfish pot in the coastal Dungeness crab fishery unless the pot bears a tag that identifies either the name of the vessel being used to operate the pot or the Dungeness crab fishery license number of the owner of the pot, and the telephone number of a contact person. No person may operate or possess a pot that bears another person's tag, except that a person who is licensed as an alternate operator may operate or possess a pot that bears the tag of the primary license holder. It is unlawful for any person who is not the owner of Dungeness crab pot gear to remove, damage, or otherwise tamper with pot gear tags.

(17) Coastal - Registration and use of buoy brands and colors.

(a) It is unlawful for any coastal Dungeness crab fishery license holder to fish for crab unless the license holder has registered the buoy brand and buoy color(s) to be used with the license. A license holder shall be allowed to register with the department only one, unique buoy brand and one buoy color scheme per license. Persons holding more than one license state shall register buoy color(s) for each license that are distinctly different. The buoy color(s) shall be shown in a color photograph.

(b) It is unlawful for a coastal Dungeness crab fishery license holder to fish for crab using any other buoy brand or color(s) than those registered with and assigned to the license by the department.

[Statutory Authority: RCW 77.12.047. 01-11-009 (Order 01-74), 220-52-040, filed 5/3/01, effective 6/3/01; 00-18-005 (Order 00-164), 220-52-040, filed 8/23/00, effective 9/23/00. Statutory Authority: RCW 75.08.080. 98-19-012 (Order 98-185), 220-52-040, filed 9/4/98, effective 10/5/98; 98-05-043, 220-52-040, filed 2/11/98, effective 3/14/98; 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, filed 4/23/91, effective 5/24/91; 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.]

Washington State Code Reviser's Office