Original Notice.

Preproposal statement of inquiry was filed as WSR 01-10-135.

Title of Rule: Amend commercial fishing rules.

Purpose: Amend Puget Sound commercial crab rules to establish a buoy tag system to improve enforcement of pot limits.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: The proposed rules would make it unlawful to fish using crab buoys without tags issued by the department to the licensee.

Reasons Supporting Proposal: Rules were developed to implement industry sponsored legislation. The buoy tag system is designed to create a more level playing field and reduce the amount of gear currently fished in excess of legal limits.

Name of Agency Personnel Responsible for Drafting: Jay Odell, 1111 Washington Street, Olympia, WA, (360) 902-2826; Implementation: Lew Atkins, 1111 Washington Street, Olympia, WA, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, (360) 902-2373.

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: Puget Sound commercial crab fishers are limited to one hundred pots per license, and some fishers purchase additional licenses in order to fish using two hundred or three hundred pots. However, pot limits are extremely difficult to enforce on the water. Based on industry and the Washington Department of Fish and Wildlife (WDFW) enforcement reports, violation of the one hundred pot per license rule is not uncommon, with a few fishers fishing with pots far in excess of the limit.

The proposed rules would require fishers to attach unique department issued tags to each crab pot buoy and make it illegal to fish using buoys with no tags, or buoys with tags belonging to other fishers. Each fisher would be issued one hundred tags and replacement tags could be obtained, upon signing an affidavit, from WDFW offices located near fishing areas.

Excess effort reduction associated with a successful buoy tagging system is estimated to be 10% to 20%. The potential benefits of the tagging system include reduced cost of labor per pound of crab harvested, longer seasons, and increased value of crab licenses.

Proposal Changes the Following Existing Rules: Rules are being modified to delete provisions that are no longer applicable, amend existing sections, and add new sections.

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

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: No additional services would be required.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: The cost of buoy tags is estimated to be approximately $100 per license.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Businesses in compliance with existing pot limit regulations would not lose sales or revenue.

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.

Compliance cost estimates for all businesses would be the same - $100 per license.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The agency will strive to obtain the least expensive tags that will meet the mutual objectives of fishers and managers.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The proposed regulation was made after consultation with commercial crab fishers regarding the implementation of legislation drafted by Puget Sound crab industry members. A public hearing will be held under the procedures for rule change of the Fish and Wildlife Commission.

8. A List of Industries That Will Be Required to Comply with the Rule: Puget Sound commercial crab fishers.

A copy of the statement may be obtained by writing to Jay Odell, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2220, fax (360) 902-2182.

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

Hearing Location: Methow Valley Community Center, 231 Methow Valley Road, Twisp, on August 3-4, 2001, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by July 27, 2001, 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) 902-2940, by August 2, 2001.

Date of Intended Adoption: August 3, 2001.

June 19, 2001

Evan Jacoby

Rules Coordinator

OTS-4956.1

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))) 77.65.130.

(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 buoys and pots must be tagged.

(a) 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 buoy or crab pot without ((a)) attached buoy and pot tags that meets the requirements of WAC 220-52-043.

(b) The department will issue one hundred buoy tags to the owner of each Puget Sound commercial crab fishery license. Additional tags to replace lost tags will only be issued to owners of Puget Sound commercial crab fishery licenses who obtain, complete, and sign an affidavit in the presence of an authorized department employee. The affidavit shall state the number of buoy tags lost, the location where lost gear or tags were last observed, and the presumed cause of the loss.

(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, or any buoy not bearing tags issued by the department to that person, except that an alternate operator designated on a primary license may possess and operate ((a)) crab buoys and crab pots bearing the tags of the license holder.

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

(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) 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.]

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

(a) Pot gear must have not less than two escape rings or ports not less than 4-1/4 inches inside diameter.

(b) Escape rings or ports described above must be located in the upper half of the trap.

(3) Puget Sound commercial gear tagging requirements.

(a) In Puget Sound, all crab pots must have a durable, non-biodegradable tag permanently and legibly marked with the ((primary)) license owner's name or license number, and telephone number securely attached to the pot. If the tag information is illegible, or if the tag is lost for any reason, the pot is not in compliance with law.

(b) In Puget Sound all crab buoys must have a buoy tag issued to the license owner by the department attached to the outermost end of the buoy line. If more than one buoy is attached to a pot, only one buoy tag is required.

(4) Puget Sound - Description of lawful buoys. All buoys attached to commercial crab gear in Puget Sound waters must consist of a durable material and remain floating on the water's surface when five pounds of weight is attached. It is unlawful to use bleach or antifreeze bottles or any other container as a float. All buoys fished under a single license must be marked in a uniform manner using one buoy brand number registered by the license holder with the department and be of identical color or color combinations. No buoys attached to commercial crab gear in Puget Sound may be both red and white in color unless a minimum of thirty percent of the surface of each buoy is also prominently marked with an additional color or colors other than red or white, as the red and white colors are reserved for personal use crab gear as described in WAC 220-56-320 (1)(c).

(5) Commercial crab license requirements. In addition to, and separate from, all requirements in this chapter that govern the time, area, gear, and method for crab fishing, landing, possession, or delivery of crabs, no commercial crab fishing is allowed except when properly licensed. A person may take, fish for, land, or deliver crabs for commercial purposes in Washington or coastal waters only when the person has the license required by statute, or when the person is a properly designated alternative operator to a valid license. For Puget Sound, a person must have a "Dungeness crab - Puget Sound" fishery license provided by RCW ((75.28.130)) 77.65.130. For coastal waters, such person must have a "Dungeness crab - Coastal" fishery license provided by RCW ((75.28.130)) 77.65.130. To use ring nets instead of or in addition to pots, then the licensee must also have the "Crab ring net - Puget Sound" or "Crab ring net - non-Puget Sound" license in RCW ((75.28.130)) 77.65.130. Qualifications for the limited entry licenses, requirements for designating vessels, and use of alternate operators is provided by and controlled by chapters ((75.28)) 77.65 and ((75.30)) 77.70 RCW.

(6) Maximum size for coastal crab pots. The maximum volume of a crab pot used to fish for or take Dungeness crab from the waters provided for in WAC 220-52-040(12) is thirteen cubic feet.

(7) Incidental catch may not be retained. It is unlawful to retain salmon, food fish, or any shellfish other than octopus that is taken incidental to any crab fishing.

[Statutory Authority: RCW 77.12.047. 00-18-005 (Order 00-164), 220-52-043, filed 8/23/00, effective 9/23/00. Statutory Authority: RCW 75.08.080. 98-19-012 (Order 98-185), 220-52-043, filed 9/4/98, effective 10/5/98; 94-12-009 (Order 94-23), 220-52-043, filed 5/19/94, effective 6/19/94; 93-15-051, 220-52-043, filed 7/14/93, effective 8/14/93; 84-08-014 (Order 84-24), 220-52-043, filed 3/27/84; 79-02-053 (Order 79-6), 220-52-043, filed 1/30/79; Order 77-145, 220-52-043, filed 12/13/77; Order 1179, 220-52-043, filed 11/19/74; Order 807, 220-52-043, filed 1/2/69, effective 2/1/69. Formerly WAC 220-52-040(1).]

Washington State Code Reviser's Office