Original Notice.

Preproposal statement of inquiry was filed as WSR 01-17-001.

Title of Rule: Commercial fishing rules.

Purpose: Amend coastal spot shrimp rules.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: Establishes conversion from spot shrimp trawl to spot shrimp pot fishery.

Reasons Supporting Proposal: Habitat protection and by-catch reduction.

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: The experimental coastal spot shrimp fishery has proven to be commercially viable, but conflicts have arisen regarding the trawl portion of this fishery. By the nature of the activity, the trawl fishery has an unacceptable impact on the rocky habitat where the spot shrimp are found. Since this habitat is crucial to rockfish, any habitat destruction will adversely affect species that are not recovering as quickly as hoped. Of equal concern is the by-catch in the trawl fishery. From observed trips, it has been noted that the trawl activity actually takes a by-catch that exceeds the poundage of the targeted spot shrimp. Included in this by-catch are rockfish, sea urchins, sponges, and other invertebrates. Neither habitat destruction nor by-catch problems occur in the spot shrimp pot fishery. By converting over, the three trawlers will have the ability to continue to derive income in the fishery.

Proposal Changes the Following Existing Rules: Eliminates coastal spot shrimp trawl fishery.

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: None required.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: Gear conversion for the trawl fishery is optional but needed if they wish to continue to harvest spot shrimp. Exercising the option will likely require the purchase or construction of shrimp pot gear as well as additions and/or modifications to deck equipment which are readily available through shipyards and ship chandlery. Deck equipment may need to be removed if the individual does not wish to transfer his pot operation to a smaller vessel to reduce operational costs. A hydraulic block (average cost $2500 for vessels without such existing equipment) will be needed to pull pots. Some tables (likely sorting equipment is transferable between gears) for sorting and cleaning the spot shrimp catch will also be needed. There will be some lost opportunity costs such as a trawl net with remaining useful life and deck gear that may not be marketable to spot shrimp trawl fishers or trawlers in other states or in gear compatible fisheries. Average costs for equipped and rigged pot purchased in lots of 50 is $61/pot and the fleet average for the pot fleet is $260/vessel. The parallel cost for a trawler without this gear would be $15,860. The maximum estimated total cost for each of the three vessels would be $18,360 plus any shipyard work for the conversion of deck gear. This last element would be highly variable due to whether they chose to do the work themselves or have it done and the extent to the scope of change needed. Within the scope of the three trawl vessels some already have this equipment and gear so these actual costs may be much less for an individual vessel. Labor costs may also decrease due to the gear change as crew size may decrease for pot vessels.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Yes - spot shrimp trawlers will lose sales and revenues due to the loss of gear efficiency of trawl over pots.

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.

The average annual sales from these three trawl vessels from 1999 and 2000 was $713,530 and the annual gear cost as a comparison was $7,500 for a trawl, plus cables @ $2000 for $9,500/yr/vessel, discounting all other fuel and operating costs between gear types. The average fleet cost is then $28,5500/yr. Pot vessels in comparison made an annual sale of $35,100 over same time frame and they may lose 10% of their gear/year at a cost of $1,586/vessel/yr for an average fleet gear cost of $14,300/yr. The net difference between the two gear types is the cost of compliance: Trawl fleet average sales (less gear cost) of $685,000; while pot fishers had average adjusted sales of $24,000. The adjusted difference is $661,000 and represents that lost adjusted gross revenues to the trawl fleet. In direct comparison for cost of compliance for trawl conversion to pot fishing the costs would vary on the basis of the expected landings. If the three trawlers only produced as much adjusted value as the pot fleet at $24,000 the per vessel cost of $18,360 for each trawler would result in a net loss of $10,440/vessel at a $230 cost for each $100 of sale in the first year. This is reduced over time due to the amortization of the initial startup costs. The proposed rule provides for interim set asides for the three converting trawlers of 75,000 lbs/yr which has an exvessel value estimated at $450,000. At this potential revenue range the conversion cost would be $40 per $100 of sale. In addition, the converting trawl vessels can access the general pot quota of 175,000 lbs for additional revenue after their set aside of 75,000 lbs is taken which would further reduce cost per $100 of sales.

Reviser's note: The typographical error in the above paragraph occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The department has developed this rule in consultation with the industry and developed a phase-in approach that provides interim measures to reduce the effect of the economic impacts to the trawlers.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department has met with the affected industry to develop this suite of proposals or consideration by the Fish and Wildlife Commission. The industry will have additional opportunity to comment on the proposed rules as well as providing written and/or oral testimony to the Fish and Wildlife Commission for their December meeting.

8. A List of Industries That Will Be Required to Comply with the Rule: The ocean spot shrimp trawl fishery of which there are three participants.

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: Best Inn and Suites, 221 N.E. Chkalov, Vancouver, WA, on December 7-8, 2001, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by November 21, 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) 902-2155, by December 6, 2001.

Date of Intended Adoption: December 7, 2001.

October 23, 2001

Evan Jacoby

Rules Coordinator

OTS-5273.1

AMENDATORY SECTION(Amending Order 00-152, filed 8/16/00, effective 9/16/00)

WAC 220-88B-030   Emerging commercial fishery -- Eligibility for coastal experimental fishery permits -- Terms and conditions of use -- Renewal.   (1) ((A 1999 coastal spot shrimp pot experimental fishery permit will be issued to a natural person who is the owner of a vessel that can prove by means of valid Washington fish receiving tickets that at least 1,000 round pounds of spot shrimp were taken from waters of the Pacific Ocean between 46.15.00' and 48.28.00" N. latitude with shellfish pot gear and delivered from that vessel during the period January 1, 1992, through March 30, 1998, and that coastal spot shrimp were landed from the vessel during 1996, 1997 or 1998. In order for a fish receiving ticket to be valid it must have been received by the department no later than April 15, 1998. Valid Oregon fish receiving tickets may be used to meet the qualifying criteria for issuance of a coastal spot shrimp pot experimental fishery permit specified in this subsection, provided that reasonable proof is presented to the department that the spot shrimp were taken from waters of the Pacific Ocean adjacent to the state of Washington prior to March 30, 1998, and the fish receiving tickets were received by the Oregon department of fish and wildlife no later than April 15, 1998.

(2) A 1999 coastal spot shrimp trawl experimental fishery permit will be issued to a natural person who is the owner of a vessel that can prove by means of valid Washington fish receiving tickets that at least 10,000 round pounds of spot shrimp were taken from waters of the Pacific Ocean between 46.15.00' and 48.28.00" N. latitude with trawl gear and delivered from that vessel during the period from January 1, 1992, through March 30, 1998, and that coastal spot shrimp were landed from the vessel during 1996, 1997 or 1998. In order for a fish receiving ticket to be valid it must have been received by the department no later than April 15, 1998. Valid Oregon fish receiving tickets may be used to meet the qualifying criteria for issuance of a coastal spot trawl experimental fishery permit specified in this subsection, provided that reasonable proof is presented to the department that the spot shrimp were taken from waters of the Pacific Ocean adjacent to the state of Washington prior to March 30, 1998, and the fish receiving tickets were received by the Oregon department of fish and wildlife no later than April 15, 1998.

(3) For purposes of this section, landings of spot shrimp reported as "tails" on fish receiving tickets will be converted to round pounds by multiplying the reported weight of tails by two.

(4) In the event the owner has replaced a vessel that was used during the qualifying period, the landings from the original and replacement vessels may be combined for purposes of achieving the minimum landing requirement during the qualifying period.

(5))) No individual may hold more than one Washington coastal spot shrimp experimental fishery permit.

(((6))) (2) Coastal spot shrimp experimental fishery permits are not transferable. Only the vessel designated in the emerging commercial fishery license and coastal spot shrimp experimental fishery permit may be used to fish for or deliver spot shrimp.

(((7) After 1999,)) (3) A coastal spot shrimp ((pot)) experimental fishery permit ((or a coastal spot shrimp trawl experimental fishery permit)) will be issued only to the person who:

(a) Held such a permit the previous year; and

(b) Beginning January 1, 2001, can demonstrate by valid Washington fish receiving tickets that at least 1,000 cumulative round weight pounds of spot shrimp taken from waters of the Pacific Ocean adjacent to the state of Washington were landed from the person's vessel during the previous two calendar years. Landings of spot shrimp reported as "tails" on fish receiving tickets will be converted to round pounds by multiplying the reported weight of tails by two.

(((8) The director may convert)) (4) Effective January 1, 2003, all coastal spot shrimp experimental trawl fishery permits shall be converted to coastal spot shrimp experimental pot fishery permits.

(((9))) (5) Coastal spot shrimp experimental fishery permits may be revoked by the director for failure to comply with conditions specified in the permits or violations of other fishing regulations. A coastal spot shrimp experimental fishery permit shall be revoked if the emerging commercial fishery license is revoked or future fishing privileges of the licensee are suspended.

(((10))) (6) The director may issue a coastal spot shrimp experimental fishery permit to another person if a permittee fails to make the requisite landings, if the person's experimental coastal spot shrimp experimental fishery permit is revoked, or if no application for an emerging commercial fishery license is received by March 31st of each year. The total number of permits issued, including replacement permits, shall not exceed the number of permits issued in 1999. Selection of persons to receive replacement permits shall be by gear or gear replacement type, and replacement permits will be offered in descending order first to persons who made the largest total of Washington coastal spot shrimp landings in each gear type during the original qualifying period, and then in descending order to persons who made the largest total of Washington coastal spot shrimp landings in each gear type. If no persons with coastal spot shrimp landings wish to participate, the director may offer a replacement permit by random drawing.

(((11))) (7) Coastal spot shrimp experimental fishery permits are only valid for the year issued and expire on December 31st of the year issued with the expiration of the emerging commercial fishery license.

(((12))) (8) The total allowable catch of spot shrimp taken from Washington territorial waters west of the Bonilla-Tatoosh line and from adjacent waters of the Pacific Ocean during a calendar year is 250,000 pounds round weight((, and shall be equally divided between trawl and pot gear fishers,)) provided that not more than 100,000 pounds may be taken south of 4704.00' N. latitude.

(9) The allowable catch shall be equally divided between trawl and pot gear permits in 2002, except that the allowable catch may be reallocated between gear types if the allowable catch of a gear type is unlikely to be taken during ((the calendar)) that year. Beginning January 1, 2003, through December 31, 2005, the allowable catch shall be allocated as follows: 175,000 pounds available to all permit holders and 75,000 pounds available to fishers who were converted from trawl to pot permits. Beginning January 1, 2006, the allowable catch is available to all permit holders.

[Statutory Authority: RCW 77.12.047. 00-17-107 (Order 00-152), 220-88B-030, filed 8/16/00, effective 9/16/00. Statutory Authority: RCW 75.08.080. 99-01-154 (Order 98-257), 220-88B-030, filed 12/22/98, effective 1/22/99.]

(1) Season - Open to shellfish pot gear the entire year.

(2) Gear restrictions:

(a) Maximum of 500 shellfish pots per permit.

(b) ((Effective January 1, 2001,)) Pot size is limited to a maximum 153 inch bottom perimeter and a maximum 24 inch height.

(c) ((Effective January 1, 2001,)) Shrimp pot gear must be constructed with net webbing or rigid mesh, and at least 50 percent of the net webbing or mesh covering the sides of the pot must easily allow passage of a seven-eighths inch diameter dowel.

(d) Pot gear is required to have an escape mechanism as provided for in WAC 220-52-035.

(e) Groundline end marker buoys must be floating and visible on the surface of the water, equipped with a pole, flag, radar reflector and operating light, and marked with the clear identification of the permittee.

(3) Incidental catch: It is unlawful to retain any species of finfish or shellfish taken with spot shrimp pot gear, except that it is lawful to retain octopus, squid, and up to 50 pounds round weight of other shrimp species taken with shrimp pot gear. It is lawful for persons fishing in the coastal spot shrimp experimental fishery to participate in the coastal bottomfish fishery under WAC 220-44-050, and to retain on board bottomfish taken in that fishery.

[Statutory Authority: RCW 77.12.047. 00-17-107 (Order 00-152), 220-88B-040, filed 8/16/00, effective 9/16/00. Statutory Authority: RCW 75.08.080. 99-01-154 (Order 98-257), 220-88B-040, filed 12/22/98, effective 1/22/99.]

(1) Season - Open to trawl gear May 1, 2002, through November 30, 2002, except closed May 1 through June 30 north of 4654.50' and south of 4704.00' N. latitude, and closed at all times within 3 miles of shore.

(2) Gear:

(a) Fish excluder devices required.

(b) Single-layered codends only, minimum mesh one and one-half inches measured between adjacent knots. Effective January 1, 2001, minimum mesh size is two inches measured between adjacent knots.

(c) Chafing gear may encircle no more than 50 percent of the circumference of the net codend and the terminal end of chafing gear may not be attached to the codend except at the corners.

(d) Trawl gear may not be rigged such that tickler chains, or any other gear drags across the bottom in front of the mouth of the net; each roller, bobbin, disc, or similar device added to the footrope of the trawl net that is intended to make contact with the sea bottom may not be less than eight inches nor more than twenty-eight inches in diameter and must roll independently and freely.

(3) Effective January 1, 2002, spot shrimp pot gear may ((not)) be aboard any vessel designated in the coastal spot shrimp trawl experimental fishery and may be used by trawl permit holders as provided in WAC 220-88B-040.

(4) Incidental catch:

(a) It is unlawful to retain more than 50 pounds round weight of other shrimp species. It is lawful to retain octopus and squid.

(b) It is unlawful to retain salmon.

(c) It is unlawful to retain any bottomfish species except as provided for in WAC 220-44-050.

[Statutory Authority: RCW 77.12.047. 00-17-107 (Order 00-152), 220-88B-050, filed 8/16/00, effective 9/16/00. Statutory Authority: RCW 75.08.080. 99-01-154 (Order 98-257), 220-88B-050, filed 12/22/98, effective 1/22/99.]

Washington State Code Reviser's Office