[Filed September 17, 2019, 10:44 a.m.]

Preproposal statement of inquiry was filed as WSR 19-10-059.

Title of Rule and Other Identifying Information: WAC 220-340-430 Commercial crab fishery—Gear requirements, 220-340-435 Commercial crab fishery—Shellfish pot requirements, 220-340-480 Commercial crab fishery—Gear limits—Coastal, and 220-340-490 Commercial crab fishery—Coastal gear recovery permits.

Hearing Location(s): On November 6, 2019, at 9:00 a.m., at the Montesano City Hall, 112 North Main Street, Montesano, WA 98563.

Date of Intended Adoption: On or after January 3, 2020.

Submit Written Comments to: Heather Hall, P.O. Box 43200, Olympia, WA, email Heather.Hall@dfw.wa.gov.

Assistance for Persons with Disabilities: Contact Dolores Noyes, phone 360-902-2349.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These proposed rule changes would reduce the risk of coastal commercial Dungeness crab gear becoming entangled with marine mammals including humpback whales, which are listed under the Endangered Species Act.

Changes would require crab line that connects a crab pot to the buoy at the surface be marked in [a] manner that makes it identifiable and the amount of line used be only that which is necessary to compensate for tides, currents and weather. In addition, permanent pot limits would be reduced beginning May 1 through the end of the season on September 15 and the amount of replacement tags would be reduced. A summery [summer] buoy tag would be required beginning May 1 which would distinguish it from crab gear that is allowed prior to May 1. Derelict gear recovery would be allowed beginning June 1 for all crab gear that does not possess a summer buoy tag.

Reasons Supporting Proposal: Large whale entanglements have increased along the west coast in recent years; these proposed changes are intended to reduce the risk that Washington coastal commercial Dungeness crab gear becomes entangled with whales. Whale disentanglement responders have recommended that reducing the amount of slack line at the surface may reduce the risk that whales will become entangled in excess line. One of the larger data gaps in understanding whale entanglements is not being able to identify gear entangled on a whale, line marking requirements will improve the information collected and help disentanglement teams and fishery managers understand whale entanglements better.

A reduced pot limit from May 1 through September 15 will reduce the amount of gear in the water by at least one-third during the time that whales are more common off the Washington coast. Requiring a different buoy tag during the summer compared to the one used during the winter will allow derelict gear recovery to begin earlier when conditions are more favorable and will reduce the amount of lost or abandoned gear in the water. With the new requirements for a reduced pot limit and summer buoy tags, the period where replacement tags are available will be shortened reducing the need for additional replacement tags.

Statutory Authority for Adoption: RCW 77.040.020 [77.04.020], 77.12.045, and 77.12.047.

Statute Being Implemented: RCW 77.040.020 [77.04.020], 77.12.045, and 77.12.047.

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

Name of Agency Personnel Responsible for Drafting: Heather Hall, 1111 Washington Street S.E., Olympia, WA, 360-902-2487; Implementation: Dan Ayres, 48 Devonshire Road, Montesano, WA, 360-249-1209; and Enforcement: Chief Steve Bear, 1111 Washington Street S.E., Olympia, 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.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. A more-than-minor cost "means a cost per business that is less than three-tenths of one percent of annual revenue or income, or one hundred dollars, whichever is greater." (RCW 19.85.020(2).)

New costs to all license owners that participate in the coastal crab fishery could result from the requirement to mark the line that goes from the pot to the buoy and the cost of buoy tags for the summer fishery.

The proposed rule does not specify how the line must be marked other than the location and the color of marking. The proposed rule language is purposely broad to allow license owners to be innovative and find ways to minimize the cost of marking line. Input from participants on the Coastal Dungeness Crab Advisory Board suggest that the cost of line marking would be negligible.

Only license owners that chose to fish from May through September 15 would incur the new cost of purchasing summer buoy tags. Historical data shows that participation in the Dungeness crab fishery drops off beginning in April as the majority of the crab resource has been harvested and participants move on to other fisheries that contribute to their business portfolio. Initial cost estimates based on recent year's exvessel revenues (2013-14 through 2017-18) suggest that the cost of summer buoy tags would not reach the minor cost threshold. Three tenths of one percent of the past five-year's average exvessel revenue (per vessel) from the Dungeness crab fishery ranges from approximately $570 to $820. The cost of summer buoy tags under the reduced pot limits of two hundred and three hundred thirty, at the current cost of $1.25 per tag, would be $250 and $412.50 for the two hundred and three hundred thirty pot limits respectively, below the lowest minor cost threshold.

A copy of the detailed cost calculations may be obtained by contacting Heather Hall, 1111 Washington Street S.E., Olympia, WA, phone 360-902-2487, fax 360-902-2943.

AMENDATORY SECTION(Amending WSR 17-17-104, filed 8/18/17, effective 9/18/17)

WAC 220-340-430Commercial crab fishery—((Buoy tag, pot tag, and buoy))Gear requirements.

(1) Buoy tag and pot tag required.

(a) It is unlawful to place in the water, pull from the water, possess on the water, or transport on the water any crab buoy or crab pot without an attached buoy tag and pot tag that meet the requirements of this section, except as provided by (b) and (c) of this subsection. A violation of this subsection is punishable under RCW 77.15.520((,)) Commercial fishing—Unlawful gear or methods—Penalty.

(b) Persons operating under a valid coastal gear recovery permit as provided in WAC 220-340-440 may possess crab pots or buoys missing tags or bearing the tags of another license holder, provided the permittee adheres to provisions of the permit. Failure to adhere to the provisions of the permit is a gross misdemeanor, punishable under RCW 77.15.750 Unlawful use of a department permit—Penalty.

(c) Persons operating under a valid coastal gear transport permit as provided in WAC 220-340-440 may possess crab pots or buoys bearing the tags issued by another state, provided the permittee adheres to provisions of the permit. Failure to adhere to the provisions of the permit is a gross misdemeanor, punishable under RCW 77.15.750 Unlawful use of a department permit—Penalty.

(2) Commercial crab fishery pot tag requirements: Each shellfish pot used in the commercial crab fishery must have a durable, nonbiodegradable tag securely attached to the pot that is permanently and legibly marked with the license owner's name or license number and telephone number. If the tag information is illegible, or the tag is lost for any reason, the pot is not in compliance with state law. A violation of this subsection is punishable under RCW 77.15.520((,)) Commercial fishing—Unlawful gear or methods—Penalty.

(3) Commercial crab fishery buoy tag requirements.

(a) The department issues crab pot buoy tags to the owner of each commercial crab fishery license upon payment of an annual buoy tag fee per crab pot buoy tag. Prior to setting gear, each Puget Sound crab license holder must purchase 100 tags, and each coastal crab fisher must purchase 300 or 500 tags, depending on the crab pot limit assigned to the license.

(b) In coastal waters each crab pot must have the department-issued buoy tag securely attached to the first buoy on the crab pot buoy line (the buoy closest to the crab pot), and the buoy tag must be attached to the end of the first buoy, at the end away from the crab pot buoy line.

(c) In Puget Sound, all crab buoys must have the department-issued buoy tag attached to the outermost end of the buoy line.

(d) If there is more than one buoy attached to a pot, only one buoy tag is required.

(e) Replacement crab buoy tags.

(i) Puget Sound: The department only issues additional tags to replace lost tags to owners of Puget Sound commercial crab fishery licenses who obtain, complete, and sign a declaration, under penalty of perjury, in the presence of an authorized department employee. The declaration must state the number of buoy tags lost, the location and date where the licensee last observed lost gear or tags, and the presumed cause of the loss.

(ii) Coastal: The department only issues replacement buoy tags for the coastal crab fishery beginning March 1 and after a signed affidavit is received by an authorized department employee. The affidavit must be signed by the primary or alternate operator fishing the commercial crab gear and state the number of buoy tags lost, the location and date where the licensee last observed lost gear or tags, and the presumed cause of the loss.

(A) Coastal crab license holders with a 300-pot limit may replace lost tags according to the following schedule: (((I) Period 1))March 1 through April 30, up to 10 tags.

(((II) Period 2, 5 additional tags with no more than 15 tags total issued through the end of Period 2.))

(B) Coastal crab license holders with a 500-pot limit may replace lost tags according to the following schedule: (((I) Period 1))March 1 through April 30, up to 15 tags.

(((II) Period 2, 10 additional tags with no more than 25 tags total issued through the end of Period 2.

(I) Period 1: March 1 through April 30.

(II) Period 2: May 1 through June 30.))(C) No replacement tags will be issued for the current season after ((July))May 1.

(D) In the case of extraordinary loss of crab pot gear, the department may issue replacement tags in excess of the amount listed in this subsection on a case-by-case basis.

(4) A violation of subsection (3) of this section is a gross misdemeanor, punishable under RCW 77.15.520((,)) Commercial fishing—Unlawful gear or methods—Penalty.

(5) Commercial crab fishery buoy requirements.

(a) All buoys attached to commercial crab gear must consist of a durable material and remain floating on the water's surface when 5 pounds of weight is attached.

(b) No buoys attached to commercial crab gear in Puget Sound may be both red and white in color unless a minimum of 30 percent of the surface of each buoy is also prominently marked with an additional color or colors other than red or white. Red and white colors are reserved for personal use crab gear as described in WAC 220-330-020.

(c) 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 may register only one unique buoy brand and one buoy color scheme with the department per license. Persons holding more than one state license must register buoy color(s) for each license that are distinctly different. The buoy color(s) will be shown in a color photograph.

(i) All buoys fished under a single license must be marked in a uniform manner with one buoy brand number registered by the license holder with the department and be of identical color or color combinations.

(ii) 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.

(6) Coastal commercial crab fishery line requirements.

(a) All crab pots used in the coastal Dungeness crab fishery shall be set up to use only the amount of line necessary to compensate for tides, currents, and weather.

(b)(i) It is unlawful for a coastal Dungeness crab fishery license holder to use line that connects the main buoy to the crab pot that is not marked sufficiently to identify it as gear used in the Washington coastal Dungeness crab fishery.

(ii) Each shellfish pot used in the Washington coastal commercial Dungeness crab fishery must be rigged with line that is marked with 18 inches of red in at least two places. At a minimum, 18 inches of line must be marked in red, no more than one fathom from the main buoy and no more than one fathom from the pot.

(7) Violation of subsection (5) of this section is a gross misdemeanor, punishable under RCW 77.15.520((,)) Commercial fishing—Unlawful gear or methods—Penalty.

AMENDATORY SECTION(Amending WSR 17-05-112, filed 2/15/17, effective 3/18/17)

WAC 220-340-435Commercial crab fishery—Shellfish pot requirements.

(1) Commercial gear limited to pots ((and ring nets)). It is unlawful to take or fish for crab for commercial purposes except with shellfish pots ((and ring nets)).

(2) Commercial gear escape rings and ports defined. It is unlawful to use or operate any shellfish pot gear in the commercial Dungeness crab fishery unless the gear meets the following requirements:

(a) Pot gear must have 2 or more escape rings or ports;

(b) Escape rings or ports must be 4-1/4 inches inside diameter or larger; and

(3) Maximum size for commercial crab pots. It is unlawful to use a crab pot greater than 13 cubic feet in volume to fish for or take Dungeness crab from state or offshore waters for commercial purposes.

(4) Groundline gear is unlawful. It is unlawful to attach or connect a crab pot or ring net to another crab pot or ring net by a common groundline or any other means that connects crab pots together.

(5) Penalty. Violation of this section is a gross misdemeanor, punishable under RCW 77.15.520 Commercial fishing—Unlawful gear or methods—Penalty, or RCW 77.15.522 Unlawful use of shellfish gear for commercial purposes—Penalty, whichever is applicable depending on the circumstances of the violation.

AMENDATORY SECTION(Amending WSR 17-05-112, filed 2/15/17, effective 3/18/17)

WAC 220-340-480Commercial crab fishery—Gear limits—Coastal.

(1) 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 the person's Dungeness crab coastal fishery license or the equivalent Oregon or California Dungeness crab fishery license is assigned a crab pot limit. A violation of this subsection is punishable under RCW 77.15.520((,)) Commercial fishing—Unlawful gear or methods—Penalty.

(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. A violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.520((,)) Commercial fishing—Unlawful gear or methods—Penalty.

(c) 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. A violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.530((,)) Unlawful use of a nondesignated vessel—Penalty.

(d) It is unlawful for a person to take or fish for Dungeness crab or to deploy crab pots unless the person is in possession of valid documentation issued by the department that specifies the crab pot limit assigned to the license. A violation of this subsection is a misdemeanor, punishable under RCW 77.15.540((,)) Unlawful use of a commercial fishery license—Penalty.

(e) Beginning May 1, through September 15, it is unlawful to leave Dungeness crab pots deployed in Grays Harbor, Willapa Bay, Columbia River, or waters of the Pacific Ocean adjacent to the state of Washington for more than 21 consecutive days without making a Dungeness crab landing.

(2) 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 is 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. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.520((,)) Commercial fishing—Unlawful gear or methods—Penalty.

(3) Determination of permanent coastal crab pot limits.

(a) The number of crab pots assigned to a Washington Dungeness crab coastal fishery license, or to an equivalent Oregon or California Dungeness crab fishery license is 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, which 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 is used to determine and assign a crab 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 determines the crab pot limit for that license. A crab pot limit of 300 will be assigned to a license with landings totaling up to 35,999 pounds and a crab pot limit of 500 will be assigned to a license with landings totaling 36,000 pounds of crab 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 crab 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.

(iii) 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 crab pot limit, provided that the same vessel was named on the licenses, and the same person held the licenses. A crab 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 will be assigned more than one coastal crab pot limit.

(4) Appeals of coastal crab pot limits. An appeal of a crab pot limit by a coastal commercial license holder must be filed with the department on or before October 18, 2001. The shellfish pot limit assigned to a license by the department will remain in effect until such time as the appeal process is concluded.

(5) Summer management period – Pot limits. Beginning May 1 through September 15, it is unlawful for a person to deploy or fish more than the specified reduced pot limit assigned to each license. Each pot deployed during the summer management period must possess a summer buoy tag.

(a) Licenses with a permanent pot limit of 500 will be assigned a reduced pot limit of 330 pots.

(b) Licenses with a permanent pot limit of 300 will be assigned a reduced pot limit of 200 pots.

AMENDATORY SECTION(Amending WSR 17-05-112, filed 2/15/17, effective 3/18/17)

WAC 220-340-490Commercial crab fishery—Coastal gear recovery permits.

(1) Emergency coastal crab gear recovery permit. Emergency permits are granted on a case-by-case basis to allow crab fishers to recover shellfish pots that were irretrievable at the end of the lawful season opening due to extreme weather conditions. The director or director's designee may grant an emergency coastal crab gear permit once a commercial crab season is closed. Crab fishers must notify and apply to the department's enforcement program for such emergency permits within 24 hours prior to the close of the commercial crab season.

(2) Coastal crab gear recovery permit. 15 days after the close of the primary coastal commercial crab season, the director or director's designee may grant a coastal crab gear recovery permit for licensed coastal Dungeness crab fishers to recover crab pots that remain in the ocean and belong to state licensed fishers.

(3) It is unlawful to fail to follow the provisions of a coastal crab gear recovery permit. Violation of this section is a misdemeanor, punishable under RCW 77.15.750 Unlawful use of a department permit—Penalty.