[Filed May 16, 2019, 3:44 p.m.]

Preproposal statement of inquiry was filed as WSR 19-03-028 on January 4, 2019.

Title of Rule and Other Identifying Information: WAC 220-354-250 Willapa Bay salmon fall fishery.

Hearing Location(s): On Tuesday, June 25, 2019, at 10:45 a.m. – 12:15 p.m., at the Region 6 Fish and Wildlife Office, 48 Devonshire Road, Montesano, WA 98563.

Date of Intended Adoption: On or after June 27, 2019.

Submit Written Comments to: Scott Bird, Washington Department of Fish and Wildlife (WDFW) Rules Coordinator, P.O. Box 43200, Olympia, WA 98504-3200, email Rules.Coordinator@dfw.wa.gov, fax 360-902-2155, by June 25, 2019.

Assistance for Persons with Disabilities: Contact Dolores Noyes, phone 360-902-2349, TTY 360-902-2207, by June 25, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules incorporate the recommendations of the North of Falcon subgroup of the Pacific Fisheries Management Council for taking harvestable number of salmon during the commercial salmon fishery in Willapa Bay, while protecting species of fish listed as endangered.

Reasons Supporting Proposal: This rule will protect salmon species listed as endangered while supporting commercial salmon fishing opportunity in Willapa Bay and incorporates changes to the rule needed as a result of the recommendations of the North of Falcon subgroup of the Pacific Fisheries Management Council.

Statutory Authority for Adoption: RCW 77.04.012, 77.04.020, 77.04.055, and 77.12.047

Statute Being Implemented: RCW 77.04.012. 77.04.020, 77.04.055, 77.12.045, and 77.12.047.

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

Name of Proponent: WDFW, governmental.

Name of Agency Personnel Responsible for Drafting: Barbara McClellan, 48 Devonshire Road, Montesano, WA 98563, 360-249-1213; Implementation: Kirt Hughes, 1111 Washington Street S.E., Olympia, WA 98501, 360-902-2705; and Enforcement: Chief Steve Bear, 1111 Washington Street S.E., Olympia, WA 98501, 360-902-2373.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. No hydraulics are involved in this rule making.

The proposed rule does impose more-than-minor costs on businesses.

Small Business Economic Impact Statement

Commercial Salmon Fishing for Willapa Bay, 2019

1. Description of the reporting, recordkeeping, and other compliance requirements of the proposed rule: These rules will incorporate the recommendations of the North of Falcon subgroup of the Pacific Fisheries Management Council to take harvestable salmon while protecting species of fish, marine mammals, and sea birds listed as endangered. The rules include legal gear requirements, area restrictions, and open periods for commercial salmon fisheries occurring in Willapa Bay.

2. Kinds of professional services that a small business is likely to need in order to comply with such requirements: These rule changes clarify dates for anticipated open periods and areas for full-fleet and limited participation salmon fisheries, and legal gear requirements for those fisheries.

3. Costs of compliance for businesses, including costs of equipment, supplies, labor, and increased administrative costs: The changes proposed by these rules that carry potential compliance costs include gear restrictions during certain days in Areas 2N and 2M. WAC 220-354-250 specifies gillnet mesh requirements of 4.25" maximum for salmon fisheries in Catch Area 2N on September 3, 6, 9, 11, and 13 and in Catch Area 2M on September 4, 2019. This gear restriction is similar to gear restrictions the department has proposed in the past for Willapa Bay salmon fisheries and currently used in the Columbia River. Because some license holders fish the Columbia River and/or Grays Harbor, they have already acquired this gear. Other license holders will be required to obtain the gear if they choose to fish in Areas 2N or 2M on the aforementioned dates. In addition, this cost can be amortized over years, as the net should last for several seasons. Cost of compliance is a range of a one-time cost to satisfy compliance with the rule. That cost is between $4,000 and $5,000.

4. Will compliance with the rule cause businesses to lose sales or revenue? The proposed rules do not affect the harvestable numbers of salmon available to nontreaty fleets. Therefore, the proposed rules should not cause any businesses to lose sales or revenue.

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: The only metric available to the department for identifying the largest ten percent of businesses, or for use in a cost comparison for small and large businesses, is the exvessel value of salmon sold by each Willapa Bay salmon commercial license in recent years. This exvessel value is used as a surrogate for sales in this analysis, but it is an underestimate of total sales, since the majority of the businesses affected have additional revenue from other fisheries and related ventures. In addition, this analysis assumes that all license holders will be required to purchase equipment described above. However, some license holders already own gear that meets the requirements, and will not be required to purchase new gear. These two factors combined mean that the cost of compliance per one hundred dollars of sales will be overestimated for small and large businesses. Also, note that each individual license was treated as a business for this analysis, although some businesses own more than one license.

In 2018, approximately thirty-nine Willapa Bay salmon licenses participated in the Willapa Bay commercial fishery. The cost of compliance will vary between license types, but the average cost per license is approximately $4,500, assuming that all license holders will be required to spend the amounts described above. For the ten percent of licenses with the highest exvessel sales values for 2018 combined, the average exvessel value per year was $16,399. This means that the cost of compliance per $100 of exvessel value would be $27.44. Most businesses affected by these rules qualify as small businesses, so an average cost of compliance for all businesses was calculated for comparison. The average exvessel value per year for all licenses for 2018 was $5,008, meaning the average cost of compliance would be $89.85 per $100 of exvessel value. Again, both of these estimates of cost of compliance are believed to be overestimates, for the reasons described above.

6. Steps taken by the agency to reduce the costs of the rule on small businesses or reasonable justification for not doing so: Most businesses affected by these rules are small businesses. As indicated above, the gear restrictions proposed by the rules apply to Columbia River salmon fisheries, and are identical to gear restrictions the department has required in past Willapa Bay salmon fishery seasons.

7. A description of how the agency will involve small businesses in the development of the rule: As in previous years, WDFW interacted with and received input from affected businesses through the North of Falcon process, which is a series of public meetings occurring from February through April each year. These meetings allowed constituents to participate in formulating these rules.

8. A list of industries that will be required to comply with the rule: All licensed fishers attempting to harvest salmon in the all-citizen commercial salmon fisheries occurring in Willapa Bay will be required to comply with these rules.

A copy of the statement may be obtained by contacting Barbara McClellan, 48 Devonshire Road, Montesano, WA 98563, phone 360-249-1213, fax 360-249-1229, email Barbara.Mcclellan@dfw.wa.gov.

AMENDATORY SECTION(Amending WSR 18-15-070, filed 7/17/18, effective 8/17/18)

WAC 220-354-250Willapa Bay salmon fall fishery.

From August 16 through December 31 of each year, it is unlawful to fish for salmon in Willapa Bay for commercial purposes or to possess salmon taken from those waters for commercial purposes, except that:

Fishing periods:

(1) Gillnet gear may be used to fish for coho salmon, chum salmon, and Chinook salmon:

Area	Time	Date(s)	Maximum Mesh Size
2N	((7:00))6:00 a.m. through ((7:00))6:00 p.m.	((9/4))9/3		4.25"
2M	((7:00))6:00 a.m. through ((7:00))6:00 p.m.	((9/6))9/4		4.25"
2N	((7:00))6:00 a.m. through ((7:00))6:00 p.m.	((9/8))9/6		4.25"
2N	((7:00))6:00 a.m. through ((7:00))6:00 p.m.	((9/10, 9/13, 9/15,))9/9, 9/11, 9/13		4.25"
((2M	6:00 p.m. through 6:00 a.m.	9/11 through 9/12		4.25"))
2N, 2M, 2T, 2U	((7:00))6:00 a.m. through ((7:00))6:00 p.m.	9/16, 9/17, 9/18, 9/19, 9/20((, 9/21))		6.5"
((2U	7:00 a.m. through 7:00 p.m.	9/17, 9/18, 9/19		4.25"
2T	7:00 a.m. through 7:00 p.m.	9/19, 9/20, 9/21		6.5"))
2N, 2M, 2T	((7:00))6:00 a.m. through ((7:00))6:00 p.m.	9/22, 9/23, 9/24, 9/25, 9/26, 9/27((, 9/28))		6.5"
((2M	7:00 a.m. through 7:00 p.m.	9/24, 9/25, 9/26, 9/27		6.5"
2T	7:00 a.m. through 7:00 p.m.	9/26, 9/27, 9/28		6.5"))
2U	((7:00))6:00 a.m. through ((7:00))6:00 p.m.	9/23, 9/24, 9/25, 9/26, 9/27		((4.25")) 6.5"
2N, 2M, 2T, 2U	7:00 a.m. through 7:00 p.m.	9/30, 10/1, 10/2, 10/3, 10/4((, 10/5))		6.5"
((2M	7:00 a.m. through 7:00 p.m.	10/1, 10/2, 10/3, 10/4		6.5"
2T	7:00 a.m. through 7:00 p.m.	10/2, 10/3, 10/4, 10/5		6.5"
2U	7:00 a.m. through 7:00 p.m.	10/1, 10/2, 10/3		4.25"
2U))2N, 2M, 2T	7:00 a.m. through 7:00 p.m.	10/7, 10/8, 10/9, 10/10		((4.25")) 6.5"
2U	7:00 a.m. through 7:00 p.m.	10/7, 10/8, 10/9, 10/10, 10/11((, 10/12))		((4.25")) 6.5"
((2T	7:00 a.m. through 7:00 p.m.	10/10		6.5"
2U	12:01 a.m. through 11:59 p.m.	11/1 through 11/2		6.5"))
2M, 2N, 2T, 2U	12:01 a.m. through 11:59 p.m.	((11/5 through 11/9)) 11/4 through 11/6		6.5"
2M, 2N, 2R, 2T, 2U	12:01 a.m. through 11:59 p.m.	((11/12 through 11/16)) 11/11 through 11/15		6.5"
2M, 2N, 2R, 2T, 2U	12:01 a.m. through 11:59 p.m.	((11/19 through 11/23)) 11/18 through 11/22		6.5"
2M, 2N, 2R, 2T, 2U	12:01 a.m. through 11:59 p.m.	((11/26 through 11/30)) 11/25 through 11/29		6.5"

Gear:

(2) Gillnet gear restrictions - All areas:

(a) Drift gillnet gear only. It is unlawful to use set net gear.

(b) It is permissible to have on-board a commercial vessel more than one net, provided the nets are of a mesh size that is legal for the fishery, and the length of any one net does not exceed one thousand five hundred feet in length.

(c) It is unlawful to use a gillnet to fish for salmon if the lead line weighs more than two pounds per fathom of net as measured on the cork line.

(d) It is permissible to have a gillnet with a lead line weighing more than two pounds per fathom aboard a vessel when the vessel is fishing in or transiting through Willapa Bay, provided the net is properly stored. A properly stored net is defined as a net on a drum that is fully covered by a tarp (canvas or plastic) and bound with a minimum of ten revolutions of rope that is 3/8 (0.375) inches or greater.

(e) From 12:01 a.m. September ((4))3 through 11:59 p.m. November ((30, 2018))29, 2019: Mesh size must not exceed six and one-half inches stretched, except mesh size must not exceed four and one-quarter inches stretched in Area 2N on September ((4, 8, 10, 13, and 15,))3, 6, 9, 11, and 13, and in Area 2M on September ((6, 11, and 12, and in Area 2U on September 17, 18, 19, 24, 25, 26, October 1, 2, 3, 8, 9, 11, and 12))4.

Other:

(3) Recovery boxes and soak time limits described in this section are required from 12:01 a.m. September ((4))3 through 11:59 p.m. November ((30, 2018))29, 2019:

(a) Each boat must have two operable recovery boxes or one box with two chambers on board when fishing in Willapa Bay Areas 2M, 2N, 2R, 2T, and 2U.

(i) Each box and chamber must be operating during any time the net is being retrieved or picked. The flow in the recovery box must be a minimum of 16 gallons per minute in each chamber of the box, not to exceed 20 gallons per minute.

(ii) Each chamber of the recovery box must meet the following dimensions as measured from within the box:

(A) The inside length measurement must be at or within 39-1/2 inches to 48 inches;

(B) The inside width measurements must be at or within 8 to 10 inches; and

(iii) Each chamber of the recovery box must include a water inlet hole between 3/4 inch and 1 inch in diameter, centered horizontally across the door or wall of the chamber and 1-3/4 inches from the floor of the chamber. Each chamber of the recovery box must include a water outlet hole opposite the inflow that is at least 1-1/2 inches in diameter. The center of the outlet hole must be located a minimum of 12 inches above the floor of the box or chamber. The fisher must demonstrate to department employees, fish and wildlife enforcement officers, or other peace officers, upon request, that the pumping system is delivering the proper volume of fresh river/bay water into each chamber.

(b) From 12:01 a.m. September 3 through 11:59 p.m. November 29, 2019, all steelhead and all wild (unmarked) Chinook must be placed in an operating recovery box, which meets the requirements in (a) of this subsection prior to being released to the river/bay as set forth in (c) of this subsection. From 12:01 a.m. November ((1))4 through 11:59 p.m. November ((30, 2018))29, 2019, all chum must be placed in an operating recovery box which meets the requirements in (a) of this subsection prior to being released to the river/bay as set forth in (c) of this subsection.

(c) All fish placed in recovery boxes must remain until they are not lethargic and/or not bleeding and must be released to the river/bay prior to landing or docking.

(d) Soak time must not exceed 45 minutes. Soak time is defined as the time elapsed from when the first of the gillnet web is deployed into the water until the gillnet web is fully retrieved from the water.

(4) Quick reporting is required for wholesale dealers and fishers retailing their catch under a "limited fish seller endorsement." According to WAC 220-352-320, reports must be ((made))submitted by 10:00 a.m. on the day ((following landing,))after the purchase date unless otherwise specified in ((an))a voluntary electronic fish receiving ticket reporting agreement (see WAC 220-352-035(3)).

(5) Retention prohibitions:

(a) All green and white sturgeon and all steelhead, except as provided in subsection (3) of this section, must be handled with care to minimize injury to the fish and must be released immediately to the river/bay.

(b) Retention of any species other than coho, Chinook, or chum salmon is prohibited.

(c) From 12:01 a.m. September ((4))3 through 11:59 p.m. October ((12, 2018))11, 2019, retention of any species other than coho salmon, hatchery Chinook salmon marked by a healed scar at the site of the adipose fin, or chum salmon is prohibited.

(d) From 12:01 a.m. November ((1))4 through 11:59 p.m. November ((30, 2018))29, 2019, retention of any species other than coho salmon or hatchery Chinook salmon marked by a healed scar at the site of the adipose fin is prohibited.

(6) Report ((ALL))all encounters of green sturgeon, white sturgeon, and steelhead, ((and wild (unmarked) Chinook)) (your name, date of encounter, and number of species encountered) to the quick reporting office via phone at #866-791-1280, fax at #360-249-1229, or email at harborfishtickets@dfw.wa.gov. Fishers may have wholesale dealers use the "buyer only" portion of the fish ticket and have encounters included with each day's quick reporting.

(7) Do ((NOT))not remove tags from white sturgeon. Please obtain available information from tags without removing tags. Submit tag information to the Washington Department of Fish and Wildlife, 48 Devonshire Rd., Montesano, WA 98563.

(8) Those waters of Area 2T, north of a line from Toke Point channel marker 3 easterly through Willapa Harbor channel marker 13 (green), then northeasterly to the power transmission pole located at 46°43.1907'N, 123°50.83134'W are ((CLOSED))closed from 12:01 a.m. September ((19, 2018))3, 2019, through 11:59 p.m., September ((28, 2018))30, 2019.

(9) It is unlawful to fish with gillnet gear in Areas 2M, 2N, 2R, 2T, and 2U unless the vessel operator has attended a "Fish Friendly" best fishing practices workshop and has in their possession while fishing a department-issued certification card.

(10) Fishers must take department observers, if requested by department staff, when participating in these openings. Fishers also must provide notice of intent to participate by contacting quick reporting by phone, fax or email, listed in subsection (6) of this section. Notice of intent must be given prior to 5:00 p.m. on August ((25, 2018))23, 2019.