BILL ANALYSIS Ó
AB 337
Page 1
Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 337 (Monning) - As Introduced: February 10, 2011
SUBJECT : Sustainable Seafood
SUMMARY : Provides that the state's voluntary sustainable
seafood program and actions taken by the Ocean Protection
Council (OPC) to implement the program are exempt from the
Administrative Procedures Act (APA). Specifically, this bill :
Provides that the state's voluntary sustainable seafood program
developed and implemented by the OPC, each component of the
program, and actions taken by the OPC to implement the program,
are exempt from provisions of the APA governing the public
process for adoption of state regulations (Government Code
Section 11346 et. seq.).
EXISTING LAW :
1)Requires the OPC to develop and implement a voluntary
sustainable seafood program containing the following four
components:
a) A protocol to guide entities on how to be
independently certified to internationally accepted
standards for sustainable seafood.
b) A marketing assistance program for California caught
seafood certification.
c) A competitive grant and loan program for assisting
California fisheries in qualifying for certification.
d) The design of a label to be used exclusively for
California caught sustainable seafood.
2)Requires the guidance protocol to be developed in a
transparent process by the OPC in a public meeting. Also
requires the OPC to publicly document that statutorily
specified criteria for certification to internationally
accepted standards for sustainable seafood have been met,
including Guidelines for the Ecolabeling of Fish and Fishery
Products from Marine Capture Fisheries promulgated by the Food
and Agriculture Organization of the United Nations.
3)Requires regulations adopted by state agencies to be adopted
in accordance with the procedures of the APA, which sets out
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specific requirements and timelines for public notice, public
hearings and public comments, and requires regulations to be
submitted to the Office of Administrative Law (OAL) for
approval. The APA requires OAL to review proposed regulations
for conformity with the legal standards of necessity, clarity,
authority, nonduplication, reference and consistency.
4)Defines a regulation to include every rule, regulation, order,
or standard of general application or the amendment,
supplement, or revision of any rule, regulation, order, or
standard adopted by any state agency to implement, interpret,
or make specific the law enforced or administered by it, or to
govern its procedure.
FISCAL EFFECT : Unknown
COMMENTS : AB 1217 (Monning), Chapter 279, Statutes of 2009,
requires the OPC to develop a voluntary sustainable seafood
program for California fisheries. AB 1217 was silent as to
whether the guidance protocol developed by OPC was required to
be adopted as a regulation following the procedures of the APA.
The APA contains specific and detailed requirements regarding
public notice, public hearings, opportunity for and response to
public comments, and review by OAL, which are generally required
for adoption of all state regulations unless expressly exempt.
The definition of a regulation, which triggers the APA
requirements, includes any standard of general applicability
adopted by the state agency to implement, interpret, or make
specific the law. An argument can be made that although the
sustainable seafood program is voluntary, and the guidance
protocol developed by the OPC merely intended to guide and
assist applicants in obtaining certification, that the protocol
is nevertheless a standard of general applicability, and
therefore meets the definition of a regulation subject to the
APA. The APA process for adoption of a regulation generally
takes up to a year. In addition to establishing procedural
requirements for public participation, the APA also requires
that regulations meet legal standards for necessity, clarity,
authority, nonduplication, reference and consistency.
According to the author's office this bill is necessary to
clarify that the requirements of the APA do not apply to the
guidance protocol developed by the OPC to assist interested
parties in obtaining independent certification for sustainable
seafood for several reasons. First, AB 1217 already requires
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the OPC to develop the protocol through a transparent process
and to adopt it in a public meeting. The OPC has also set up an
advisory panel of stakeholders consisting of California
fisheries which meets publicly. In light of this existing
public process, the author and sponsors assert that requiring
the protocol to also be adopted as a regulation through the APA
rule making process would be duplicative and delay
implementation of an innovative voluntary sustainable seafood
program that promotes California's economic interests by
supporting fishermen. Second, the protocol developed by OPC
will incorporate by reference the certification standards
specified in Public Resources Code Section 35550, which among
other things, require that the seafood certified as meeting
internationally accepted standards must meet or exceed the
Guidelines for the Ecolabeling of Fish and Fishery Products from
Marine Capture Fisheries promulgated by the Food and Agriculture
Organization of the United Nations (FAO). As additional
information becomes available, and the international guidelines
and certifying methodologies are updated, it will be necessary
for the OPC to update the guidance protocol accordingly. The
Coastal Conservancy indicates that it may be necessary to amend
the methodology as often as twice a year. If the OPC is
required to undergo a formal rulemaking process every time there
is a change, the program could become too burdensome to
implement.
Support Arguments : Supporters assert this bill is necessary to
ensure timely implementation of California's sustainable seafood
program, and that requiring the guidance protocol to go through
the formal APA rulemaking process would unnecessarily duplicate
the transparency and public participation already required under
the law.
Opposition Arguments : The Turtle Island Restoration Network, a
member of the California Sustainable Seafood Advisory Panel,
opposes this bill unless the sustainable seafood statute is
amended to provide more specific requirements for public notice
and outreach to a broad range of stakeholders.
Bagley-Keene Open Meeting Act : It should be noted that Section
35612 of the Public Resources Code requires that all OPC
meetings be open to the public. OPC as a state body is also
subject to the Bagley-Keene Open Meeting Act which requires 10
days advance public notice of meetings.
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Issue for consideration : Although the existing law requires OPC
to develop and adopt the guidance protocol through a transparent
process and in a public meeting that has been publicly noticed,
the law does not clearly require that subsequent amendments to
the protocol be similarly adopted through a transparent and
public process. If the committee approves the APA exemption as
proposed in this bill, the committee may wish to consider an
amendment requiring that subsequent amendments or revisions to
the protocol also be developed and adopted through a public
process as follows:
35617. (b) The program shall consist of all of the following:
(1) A protocol to guide entities on how to be
independently certified to internationally accepted
standards for sustainable seafood. The protocol and any
substantive amendments or revisions to the protocol must
be developed in a transparent process and adopted by the
council in a public meeting. The council shall identify
in a public document that the provisions of subdivision
(c) of Section 35550 have been met.
REGISTERED SUPPORT / OPPOSITION :
Support
California Coastal Conservancy
Hayes Street Grill
Monterey Bay Aquarium
Monterey Fish Market
State Coastal Conservancy
Opposition
Turtle Island Restoration Network (unless amended)
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096