WSR 02-02-061

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed December 28, 2001, 10:23 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-18-070.

Title of Rule: Commercial fishing rules.

Purpose: Amend marine fish rules.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: Sets seasons, limits and catch areas for bottom fish and forage fish.

Reasons Supporting Proposal: Protection of shark populations, protection of spawning Pacific cod, clarification of forage fish gear, and allocation of smelt resource.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

Name of Proponent: Department of Fish and Wildlife.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Six-gill shark populations are depressed and in need of total protection. Dogfish shark populations have declined, and nontargeted bycatch will be eliminated to preserve these stocks. The Pacific cod trawl fishery is restricted early in the year to protect spawning stocks. Since little trawl effort occurs on these stocks prior to May 1st, the anticipated effect is minimal. The dogfish shark seasons are reduced, as allocation between user groups, as well as lower allowable fishery harvest targets, could cause over-fishing the Puget Sound stocks. Clarification of use of dip net gear will continue use of such gear as dip nets, but not allow dip nets to be used as gill net or trawl gear. Angler and commercial conflicts at Ross Point have escalated, and the ALEA lands area will be allocated to recreational catch. By expanding the commercial exclusion zone for smelt fishing, it will provide for an orderly fishery.

Proposal Changes the Following Existing Rules: Shark retention is limited, Pacific cod trawl season shortened, dogfish seasons are reduced, dip net use is clarified, and a smelt commercial exclusion zone is increased.

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: 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? In the short term there will be less harvest opportunity for some species of marine fish in Puget Sound. However, adoption of these rules will provide long-term conservation benefits for these species of marine fish and, hence, provide long-term economic benefits to the affected fishing businesses.

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.

We identified thirty-three fishing businesses active in 2001 which could be impacted by these proposals. The four largest of these businesses reported a total of $552,000 in fishing revenue in 2001 (through early December). Based on fishing patterns in 2001, the short term impact of adoption of these proposed rules based on $100 in sales:


Sixgill shark- $0 per $100
Surf smelt- $0 per $100
Dogfish and Pacific cod- $3 per $100

Estimated cost of compliance and 2001 revenue for the

10% largest businesses impacted by these proposals:



BOAT

NUMBER

COST OF REGULATIONS

(thousands of $)

2001 FISHING REVENUE

(thousands of $)

1 0 130.8
2 6.9 130.9
3 9.6 133.9
4 1.2 156.4
TOTAL 17.7 552.0

Boat numbers are fictional to ensure confidential nature of economic data.

These costs are short term and assume "worse-case" conditions, i.e., that businesses are unable to replace lost fishing opportunity with fishing in new areas or times or fishing for alternate species.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: These rules are intended to provide needed conservation for selected species of fish in Puget Sound. The proposed rules were drafted to minimize the impact on harvest of other species to the extent practical.

7. A Description of How the Agency will Involve Small Businesses in the Development of the Rule: The Department of Fish and Wildlife is planning a series of public/industry meetings to discuss the proposed rules. These meetings will be held in January 2002, prior to consideration of the proposed rules by the Fish and Wildlife Commission in February 2002. Ideas and changes developed at the workshops will be evaluated by the staff and the proposed rules may be changed in accordance with these suggestions. Additionally, affected persons may present written and oral testimony directly to the Fish and Wildlife commission prior to the decision on these proposals.

8. A List of Industries That will be Required to Comply with the Rule: Commercial fishing industry in Puget Sound. Those businesses using setnet, setline and bottom trawl gear will be most affected.

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, 1111 Washington Street, Olympia, WA 98501-1091 on February 8-9, 2002, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by January 18, 2002, TDD (360) 902-2207, or (360) 902-2226.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by February 1, 2002.

Date of Intended Adoption: February 8, 2002.

December 28, 2001

Evan Jacoby

Rules Coordinator

OTS-5398.1


AMENDATORY SECTION(Amending WSR 98-05-043, filed 2/11/98, effective 3/14/98)

WAC 220-48-005   Puget Sound bottomfish -- General provisions.   (1) It is unlawful to possess any English sole less than 12 inches in length taken by any commercial bottomfish gear in all Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas.

(2) It is unlawful to possess any starry flounder less than 14 inches in length taken by any commercial bottomfish gear in all Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas.

(3) It is unlawful to possess lingcod taken with any commercial gear the entire year in Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas 23D, 24A, 24B, 24C, 24D, 25B, 25C, 25D, 26A, 26B, 26C, 26D, 27A, 27B, 27C, 28A, 28B, 28C, and 28D.

(4) It is unlawful to possess any lingcod less than 26 inches in length or greater than 40 inches in length taken by any commercial gear in all state waters east of the Bonilla-Tatoosh line.

(5) It is unlawful to possess lingcod taken by any commercial gear from June 16 through April 30 in Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas 20A, 20B, 21A, 21B, 22A, 22B, 23A, 23B, 23C, 25A, 25E, and 29.

(6) It is unlawful to possess any species of shellfish taken with lawful bottomfish gear except as provided in WAC 220-52-063 and 220-52-066.

(7) Incidental catch.

(a) It is lawful to retain bottomfish taken incidental to any lawful salmon fishery, provided the bottomfish could be lawfully taken.

(b) It is unlawful to retain salmon or sturgeon taken incidental to any lawful bottomfish fishery in Puget Sound.

(c) It is unlawful to retain any species of shellfish taken incidental to any bottomfish fishery in Puget Sound, except that it is lawful to retain octopus and squid.

(d) It is unlawful to retain any whiting taken incidental to any bottomfish fishery in Catch Areas 24B, 24C or 26A except using pelagic trawl gear when these areas have been opened by the director for a directed whiting fishery.

(8) A vessel trip is defined as having occurred upon the initiation of transfer of catch from a fishing vessel.

(9) Pacific cod.

(a) It is unlawful to discard any Pacific cod taken by any commercial fishing gear.

(b) All Pacific cod taken by a commercial gear shall be landed at a licensed commercial dealer.

(10) Sablefish. It is unlawful to take more than 300 pounds of sablefish per vessel trip or more than 600 pounds of sablefish per two-month cumulative limit from open Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas. A two-month cumulative limit is the maximum amount of fish that may be taken and retained, possessed or landed per vessel per two-fixed calendar month period. The fixed two-month periods are January-February, March-April, May-June, July-August, September-October and November-December.

(11) Sixgill shark. It is unlawful to retain sixgill shark taken by commercial fishing gear in all Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas.

(12) Dogfish shark. It is unlawful to retain dogfish shark taken from any Puget Sound Marine Fish-Shellfish Management and Catch Reporting Area that is not open to either a dogfish set net fishery under WAC 220-48-029, or a set line fishery under WAC 220-48-031.

[Statutory Authority: RCW 75.08.080. 98-05-043, 220-48-005, filed 2/11/98, effective 3/14/98; 94-12-009 (Order 94-23), 220-48-005, filed 5/19/94, effective 6/19/94; 93-15-051, 220-48-005, filed 7/14/93, effective 8/14/93; 92-11-011 (Order 92-28), 220-48-005, filed 5/12/92, effective 6/12/92; 85-08-023 (Order 85-24), 220-48-005, filed 4/1/85; 83-24-024 (Order 83-200), 220-48-005, filed 11/30/83, effective 1/1/84; 82-24-080 (Order 82-215), 220-48-005, filed 12/1/82, effective 1/1/83; 82-14-056 (Order 82-72), 220-48-005, filed 7/1/82.]


AMENDATORY SECTION(Amending Order 01-58, filed 4/18/01, effective 5/19/01)

WAC 220-48-015   Beam trawl and bottom trawl -- Seasons.   (1) It is lawful to fish for and possess bottomfish taken with bottom trawl and beam trawl gear in Marine Fish-Shellfish Management and Catch Reporting Areas 20A, 20B, 21A, 22A, 22B, 23A, 23B, 23C, 25A, and 25B the entire year with the following exceptions:

(a) Those waters of Area 20A east of a line projected from Point Whitehorn to Sandy Point are closed the entire year.

(b) Those waters of Area 20A within an area bounded by lines from Lilly Point to Birch Point and from the southwest corner of Point Roberts to Point Whitehorn to where these two lines are intersected by a line south from Kwomais Point in British Columbia and a line from Lilly Point to the north Alden Bank buoy are closed April 15 through May 31.

(c) Those waters of Area 20A within an area bounded by lines from Lilly Point to Birch Point and Lilly Point to the north Alden Bank buoy to where those lines are intersected by a line projected approximately 230 degrees south from Birch Point to Alden Point on Patos Island are closed June 1 through June 30.

(d) Areas 20A, 20B, 21A, 22A and 22B are closed to all trawl fishing in waters less than 30 feet deep.

(e) Areas 20A, 20B, 21A, 22A and 22B are closed in waters deeper than 40 fathoms from 12:01 a.m. September 15 through December 31 except if the Pacific cod quota for these waters has not been taken by September 15, these waters may be opened by emergency rule for the taking of the Pacific cod quota.

(f) Area 23C is closed to otter trawl fishing the entire year in waters shallower than 50 fathoms and is closed to beam trawl fishing in waters less than 60 feet deep.

(g) Area 23C is closed to otter trawl Wednesday, Saturday and Sunday, ((January)) May 1 through August 31, and closed to all otter trawl January 1 through April 30 and September 1 through December 31.

(2) It is lawful to fish for and possess bottomfish taken with beam trawl gear in Marine Fish-Shellfish Management and Catch Reporting Areas 23A, 23B, 25A and 25B the entire year with the following exceptions:

(a) All of Area 25A is closed February 1 through April 15 of each year.

(b) Those waters of Area 25A lying southerly and westerly of a line projected from Kiapot Point to Gibson Spit (Sequim Bay) are closed the entire year.

(c) Areas 23A, 25A and 25B are closed to beam trawl fishing in waters less than 60 feet deep.

(3) It is unlawful to fish for or possess bottomfish taken with otter trawl gear in Marine Fish-Shellfish Management and Catch Reporting Areas 23A, 23B, 25A and 25B the entire year.

(4) It is unlawful to take, fish for or possess bottomfish taken with bottom trawl or beam trawl gear in Marine Fish-Shellfish Management and Catch Reporting Areas 21B, 23D, 24A, 24B, 24C, 24D, 25C, 25D, 25E, 26A, 26B, 26C, 26D, 27A, 27B, 27C, 28A, 28B, 28C, 28D, and 29 the entire year.

(5) It is unlawful to take more than 500 pounds of rockfish with beam trawl and bottom trawl gear during any vessel trip in all Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas.

[Statutory Authority: RCW 77.12.047. 01-10-001 (Order 01-58), 220-48-015, filed 4/18/01, effective 5/19/01; 01-02-060 (Order 00-266), 220-48-015, filed 12/29/00, effective 1/29/01. Statutory Authority: RCW 75.08.080. 98-05-043, 220-48-015, filed 2/11/98, effective 3/14/98; 97-07-053 (Order 97-52), 220-48-015, filed 3/17/97, effective 4/17/97; 94-19-001 (Order 94-96), 220-48-015, filed 9/7/94, effective 10/8/94; 94-12-009 (Order 94-23), 220-48-015, filed 5/19/94, effective 6/19/94; 91-13-051 (Order 91-39), 220-48-015, filed 6/14/91, effective 7/15/91; 89-14-010 (Order 89-48), 220-48-015, filed 6/22/89; 87-04-003 (Order 87-03), 220-48-015, filed 1/22/87; 85-08-023 (Order 85-24), 220-48-015, filed 4/1/85; 84-08-014 (Order 84-24), 220-48-015, filed 3/27/84; 83-24-024 (Order 83-200), 220-48-015, filed 11/30/83, effective 1/1/84; 83-04-025 (Order 83-04), 220-48-015, filed 1/27/83; 82-24-080 (Order 82-215), 220-48-015, filed 12/1/82, effective 1/1/83; 82-14-056 (Order 82-72), 220-48-015, filed 7/1/82.]


AMENDATORY SECTION(Amending Order 91-39, filed 6/14/91, effective 7/15/91)

WAC 220-48-029   Set net -- Dogfish -- Seasons.   It is lawful to take, fish for and possess dogfish and other species of bottomfish, except halibut, salmon and shellfish, taken with dogfish set net gear for commercial purposes in the following Puget Sound Marine Fish-Shellfish Management and Catch Reporting Areas during the seasons designated below:

(1) Areas 20A and 20B - November 1 through June 15.

(2) Area 21A - March 1 through June 15.

(3) Areas 21B, 22A, 22B, 23A, and 23B - Closed all year.

(4) Areas 23C and 23D - ((Open all year)) January 1 through September 15.

(5) Areas 24A, 24B, and 24D - ((Open all year)) January 1 through September 15.

(6) Area 24C - ((Open all year)) January 1 through September 15, except those waters south of a line projected due east of East Point on Whidbey Island are closed all year.

(7) Areas 25A, 25B and that portion of Area 25C west of a line from Twin Spits to the Port Gamble Millstack - ((Open all year)) January 1 through September 15.

(8) Area 25D and that portion of 25C east of line from Twin Spits to the Port Gamble Millstack - Closed all year.

(9) Area 25E - Closed all year ((except by permit issued by the director)).

(10) Area 26A - ((Open all year)) January 1 through September 15, except those waters southerly and westerly of a line between the ferry dock at Mukilteo and the ferry dock at Clinton are closed all year.

(11) Area 26B - ((Open all year)) January 1 through September 15 except those waters provided for in WAC 220-20-020(4) (Shilshole Bay) are closed at all times and those waters west of a line from Point Jefferson to Point Monroe are closed from January 1 to April 15. Those waters west of a line projected 178 degrees true from the end of the Indianola dock to the landfall on the south shore of Port Madison are closed at all times.

(12) Area 26C - Open April 16 through December 31, except those waters north of a line projected true east of Point Bolin and those waters west of a line projected 178 degrees true from the end of the Indianola dock to the landfall on the south shore of Port Madison are closed at all times.

(13) Area 26D - ((Open all year)) January 1 through September 15, except Quartermaster Harbor and those waters south of lines projected from Dash Point to Point Piner on Maury Island and from Point Dalco true west to the Kitsap Peninsula are closed all year.

(14) Areas 27A, 27B, and 27C - ((Open all year)) January 1 through September 15.

(15) Area 28A - ((Open all year)) January 1 through September 15, except those waters north of a line projected true east of Fox Point on Fox Island, and east of a line projected due north from the northwest tip of Fox Island are closed all year.

(16) Areas 28B, 28C, and 28D - ((Open all year)) January 1 through September 15 except those waters provided for in WAC 220-20-010(6) (upper Carr Inlet).

(17) Area 29 - ((Open all year)) January 1 through September 15.

[Statutory Authority: RCW 75.08.080. 91-13-051 (Order 91-39), 220-48-029, filed 6/14/91, effective 7/15/91; 89-14-010 (Order 89-48), 220-48-029, filed 6/22/89; 84-08-014 (Order 84-24), 220-48-029, filed 3/27/84; 82-24-080 (Order 82-215), 220-48-029, filed 12/1/82, effective 1/1/83; 82-14-056 (Order 82-72), 220-48-029, filed 7/1/82.]

OTS-5399.1


AMENDATORY SECTION(Amending WSR 98-05-043, filed 2/11/98, effective 3/14/98)

WAC 220-49-013   Herring, anchovy and smelt fishing -- Dip bag net.   (1) Lawful dip bag net gear in the Puget Sound herring and anchovy fisheries shall not exceed 18 square feet. Lawful dip bag net gear in the Puget Sound smelt fishery shall not exceed 36 inches across the frame. It is unlawful to operate a dip net from a vessel under power, and it is unlawful to operate more than one dip net at one time.

(2) Licensing:

(a) A smelt dip bag net fishery license is a license required to operate the gear provided for in this section and allows the operator to retain smelt and anchovy.

(b) A herring dip bag net fishery license is a license required to operate the gear provided for in this section and allows the operator to retain herring.

[Statutory Authority: RCW 75.08.080. 98-05-043, 220-49-013, filed 2/11/98, effective 3/14/98; 94-12-009 (Order 94-23), 220-49-013, filed 5/19/94, effective 6/19/94; Order 1105, 220-49-013, filed 12/28/73.]


AMENDATORY SECTION(Amending WSR 98-05-043, filed 2/11/98, effective 3/14/98)

WAC 220-49-056   Smelt fishing -- Seasons.   It shall be unlawful to take, fish for or possess smelt for commercial purposes in Puget Sound except during the following seasons:

(1) Areas 20A and 21A - July 1 to April 15.

(2) Area 22B - November 1 to April 15.

(3) Areas 24A, 24B, 24C, and 24D - July 1 to April 15.

(4) Areas 25A and 25E - November 1 to April 15.

(5) Areas 26B, 26C, 26D, 27B, 27C, 28B, and 28C - October 1 to April 15 except those waters ((within 200 feet of shore adjacent to department property at Ross Point in Area 26C are closed to commercial smelt harvest)) of Sinclair Inlet west of a line due south from the ferry dock in Bremerton.

(6) Areas 28A and 28D - September 1 to April 15.

(7) All other areas open the entire year.

[Statutory Authority: RCW 75.08.080. 98-05-043, 220-49-056, filed 2/11/98, effective 3/14/98; 94-12-009 (Order 94-23), 220-49-056, filed 5/19/94, effective 6/19/94; 91-13-051 (Order 91-39), 220-49-056, filed 6/14/91, effective 7/15/91; 83-24-024 (Order 83-200), 220-49-056, filed 11/30/83, effective 1/1/84; 83-04-025 (Order 83-04), 220-49-056, filed 1/27/83; Order 76-148, 220-49-056, filed 12/2/76; Order 76-26, 220-49-056, filed 1:45 p.m., 4/20/76; Order 1105, 220-49-056, filed 12/28/73.]

Washington State Code Reviser's Office