Original Notice.

Preproposal statement of inquiry was filed as WSR 01-08-001.

Title of Rule: Commercial fishing rules.

Purpose: Amends coastal shrimp trawl rule.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: Amend coastal shrimp trawl rule to require a fin fish excluder device.

Reasons Supporting Proposal: Reduce by-catch.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Lew Atkins, 111 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 coastal ocean pink shrimp trawl fishery has a by-catch of rockfish. Two of the species encountered, canary rockfish and yellow eye rockfish, have severely depressed populations and the directed rockfish trawl fishery takes the entire allotment. The unintended by-catch in the shrimp fishery puts the harvest level over the threshold where the fisheries must be curtailed. In order to allow the shrimp fishery to continue, it is necessary to reduce or eliminate the rockfish by-catch. This can be accomplished with excluder devices, which will allow rockfish to escape. The proposed rule allows fishers to elect to use one of three different types of excluder devices.

Proposal Changes the Following Existing Rules: Adds excluder devices to coastal shrimp trawl.

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: Depending on the expertise of the fisher, it may or may not require a net rigger to install the excluder device.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: The Fisheye by-catch reduction device cost approximately $350 per net. The Soft Panel device costs approximately $750 per net. The Nordmore grate costs approximately $500 per net.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Failure to comply will result in shutting down the fishery. The Fisheye and Soft Panel have a shrimp escape rate of 5 to 30%. The Nordmore grate increases the shrimp retention rate.

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.

At three persons per vessel, and using double net rigging, the one-time installation costs are:

Fisheye - $233/employee

Soft Panel - $500/employee

Nordmore - $333/employee

The landings are controlled by the amount of time the fisher can remain at sea with fresh shrimp. Accordingly, they cannot offset the loss by fishing longer. Although the shrimp loss varies from 5 to 30% for the Fisheye and Soft Panel devices, a 10% loss is reasonable. For these two devices, a 10% loss per landing would average 2,000 to 3,000 pounds at $.30/pound, or a cost per employee of $200 to $300 per landing.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: Allowing the industry to select the device they wish to install.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: This rule was developed with industry participation to allow the fishery to continue.

8. A List of Industries That Will Be Required to Comply with the Rule: Coastal shrimp trawlers.

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 24, 2001

Evan Jacoby

Rules Coordinator

OTS-5172.1

AMENDATORY SECTION(Amending Order 00-165, filed 8/22/00, effective 9/22/00)

WAC 220-52-050   Ocean pink shrimp trawl fishery -- Coastal waters.   It is unlawful to fish for, possess or deliver ocean pink shrimp taken for commercial purposes from the waters of the Exclusive Economic Zone except as provided for in this section:

(1) Ocean pink shrimp fishery:

(a) The open season for trawl gear is April 1 through October 31 of each year.

(b) The following gear is prohibited: Trawl gear having a net mesh size greater than two inches in the intermediate or codend, except for net mesh used in fish excluder devices. It is lawful to have net mesh larger than two inches in the wings or body of the trawl.

(i) It is unlawful to fish with trawl gear for pink shrimp for commercial purposes unless an approved by-catch reduction device is used in each net. Approved by-catch reductions devices are:

(A) Fisheye By-catch Reduction Device which functions as a forward facing escape hole in the top of the codend. The escape hole is maintained by a rigid frame that keeps it open at all times. An approved fisheye must meet the following criteria:

(I) The escape hole must be forward facing, meaning that a fish must swim toward the mouth of the net to exit through the fisheye;

(II) The device must be placed on the top half of the codend, with the escape hole located no further forward than 84 codend meshes, counted from the terminal codend pursing rings. The escape hole must be unobstructed at all times;

(III) The escape hole must have a width and length that each exceeds seven inches.

(B) Soft Panel By-catch Reduction Device which uses a mesh panel to guide fish out of an escape hole. An approved soft-panel must meet the following criteria:

(I) The panel must completely cover some portion of the net in cross-section, meaning it must extend completely across the full opening of the net in one continuous piece. The panel must be securely fastened to the net around the entire perimeter, such that a 110 mm diameter sphere cannot pass beyond the panel into the terminal end of the codend;

(II) The panel meshes must be constructed of netting material with individual meshes no larger than 5.5 inches, measured between opposing knots;

(III) The escape hole must, when spread open, expose a hole of at least 100 square inches;

(IV) The escape hole must be forward of the mesh panel and must begin within four meshes of the furthest aft point of attachment of the mesh panel to the net;

(C) Nordmore grate uses a rigid panel of narrowly spaced vertical bars to guide fish out of an escape hole in front of the panel, generally in the top of the net. An approved Nordmore grate must meet the following criteria:

(I) The exterior circumference of the rigid panel must fit completely within the interior circumference of the trawl net, such that there is no space between the panel and the net that will allow a 110 mm sphere to pass beyond the panel, into the terminal area of the codend;

(II) None of the openings between the vertical bars in the rigid panel may exceed two inches in width;

(III) The escape hole must, when spread open, expose a hole of at least 100 square inches;

(IV) The escape hole must be forward of the rigid panel and must begin within four meshes of the furthest aft point of attachment of the rigid panel to the net.

(ii) All by-catch reduction devices and codends used for trawl fishing for pink shrimp must be readily accessible and made available for inspection at the request of an authorized agent of the state. No trawl gear may be removed from the vessel prior to offloading of shrimp.

(iii) It is unlawful to modify by-catch reduction devices in any way that interferes with their ability to allow fish to escape from the trawl, except for the purpose of testing the by-catch reduction device to measure shrimp loss. Authorized testing of by-catch reduction devices must meet the following criteria:

(A) All testing must be conducted between 3:00 p.m. and 6:00 p.m. Pacific Daylight Time;

(B) For vessels fishing two nets simultaneously (double-rigged boats), only one net may contain a disabled by-catch reduction device, the other net must be fishing a fully functional by-catch reduction device as described in (b)(i) of this subsection.

(c) Minimum number of shrimp per pound: The count per pound must average no more than 160 shrimp per pound for a minimum of two samples increasing at a rate of one sample per one thousand pounds landed or in possession up to a maximum requirement of twenty samples. Such samples shall consists of at least one pound of each of whole unbroken shrimp taken at random from throughout the individual load landed or in possession. This shall apply only to loads of 3,000 pounds of shrimp or more.

(d) Incidental catch-finfish: It is unlawful to take salmon incidental to any shrimp fishery. It is unlawful to retain any bottomfish species taken incidental to shrimp trawl fishery except as provided for in WAC 220-44-050.

(e) Incidental catch-shellfish:

(i) It is unlawful to retain any species of shellfish except that it is lawful to retain up to 50 pounds round weight of other shrimp species taken incidentally in the ocean pink shrimp fishery, or octopus or squid.

(ii) It is unlawful to fish for ocean pink shrimp within the territorial boundaries of the state.

(f) An ocean pink shrimp delivery license is the license required to operate the gear provided for in this section, and allows the operator to retain shrimp taken in the waters of the Exclusive Economic Zone.

(2) Fisheries for shrimp species other than ocean pink shrimp or ocean spot shrimp: Species other than ocean pink shrimp and ocean spot shrimp may only be taken incidentally to the ocean pink shrimp and ocean spot shrimp fisheries.

[Statutory Authority: RCW 77.12.047. 00-17-145 (Order 00-165), 220-52-050, filed 8/22/00, effective 9/22/00. Statutory Authority: RCW 75.08.080. 99-01-154 (Order 98-257), 220-52-050, filed 12/22/98, effective 1/22/99; 94-12-009 (Order 94-23), 220-52-050, filed 5/19/94, effective 6/19/94; 93-15-051, 220-52-050, filed 7/14/93, effective 8/14/93; 87-23-006 (Order 87-187), 220-52-050, filed 11/6/87; 84-08-014 (Order 84-24), 220-52-050, filed 3/27/84; 83-04-025 (Order 83-04), 220-52-050, filed 1/27/83; 82-03-045 (Order 82-6), 220-52-050, filed 1/19/82; 80-13-064 (Order 80-123), 220-52-050, filed 9/17/80; 79-02-053 (Order 79-6), 220-52-050, filed 1/30/79; Order 76-152, 220-52-050, filed 12/17/76; Order 76-26, 220-52-050, filed 1:45 p.m., 4/20/76; Order 1242, 220-52-050, filed 8/7/75, effective 9/16/75; Order 1179, 220-52-050, filed 11/19/74; Order 1112, 220-52-050, filed 4/15/74; Order 945, 220-52-050, filed 8/16/71; Order 807, 220-52-050, filed 1/2/69, effective 2/1/69; subsections 1, 5, 6 from Orders 414 and 256, filed 3/1/60; subsection 2 from Orders 420 and 256, filed 3/1/60; subsection 3 from Order 525, filed 5/3/61; Orders 414 and 256, filed 3/1/60; subsection 7 from Order 525, filed 5/3/61.]

Washington State Code Reviser's Office