BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 337 HEARING DATE: June 14, 2011
AUTHOR: Monning URGENCY: No
VERSION: March 25, 2011 CONSULTANT: Bill Craven
DUAL REFERRAL: Rules FISCAL: Yes
SUBJECT: Ocean resources: Ocean Protection Council: sustainable
seafood.
BACKGROUND AND EXISTING LAW
In 2009, AB 1217 (Monning) was passed and signed by the
governor. That legislation established a sustainable seafood
program at the California Ocean Protection Council (OPC) that is
required to adhere to international sustainable seafood
standards. Generally, these standards are designed to avoid
overfishing and they also establish a management system that
meets specified criteria. This program is non-regulatory and is
open to fishermen and businesses within a fishery who
voluntarily seek to establish the sustainability of that
fishery. AB 1217 also authorized marketing assistance to
sustainable fisheries which would be administered through
competitive grants or loans by the OPC.
Additionally, the statute directs the OPC to develop a protocol
to guide entities on how to be independently certified as
sustainable and to design a label or labels that may be used
exclusively to identify seafood caught in California.
The statute stipulates that the protocol is to be developed in a
transparent process and adopted by the OPC in a public meeting.
In addition, the protocol must meet or exceed the standards for
the "Eco-labeling of Fish and Fishery Products from Marine
Capture Fisheries" promulgated by the Food and Agriculture
Organization of the United Nations (FAO). The OPC itself will
not certify fisheries in California, but instead it will guide
entities on how to become certified as sustainable through
existing organizations.
1
At the March 3, 2010 OPC meeting, the OPC approved a
recommendation to appoint a public advisory board to assist the
staff of the OPC in implementation of AB 1217. The panel
members represent state or federal fishery management agencies,
non-governmental organizations (NGOs), the commercial fishing
industry, fish processors, fish retailers or traders,
restaurateurs, public health/nutrition officials, fishing port
officials, and the scientific community. Following 3 public
meetings and a period of public comment, a draft protocol was
presented to the OPC on May 12, 2011.
PROPOSED LAW
The protocol will likely be amended from time to time as new
scientific information becomes available and is incorporated
into the protocol. The bill directs that those amendments and
revisions would be subject to the same requirements of
transparency and adoption at a public hearing as the protocol
itself.
Second, the bill proposes that the sustainable seafood promotion
program would be exempt from the Administrative Procedure Act
which requires, in part, the Office of Administrative Law to
approve regulations.
ARGUMENTS IN SUPPORT
Supporters include the Coastal Conservancy, a coalition of ocean
conservation organizations including the Monterey Bay Aquarium
(sponsor), EDF, Defenders of Wildlife, Save Our Shores, and 7th
Generation Advisors.
On the issue of the APA exemption, the Coastal Conservancy
states that the formal APA rulemaking process would
unnecessarily duplicate the transparency and public
participation already required by AB 1217. Further, the
conservancy states that the sustainable seafood certification
methodologies may be updated as frequently as every six months
for the forseeable future, especially considering that this is a
new and evolving program.
ARGUMENTS IN OPPOSITION
The Turtle Island Restoration Network advocates for an amendment
requiring greater outreach by the OPC that would provide more
extensive public notice to low-income, non-English speaking, and
other non-governmental organizations. It also opposes the APA
exemption.
The California Fisheries and Seafood Institute considers the
2
voluntary sustainable seafood initiative to be regulatory in
nature that should be subject to the APA process.
COMMENTS
Is the APA exemption necessary? To paraphrase the APA: the APA
defines "regulation" as those rules or standards adopted by
state agencies to implement or interpret the law. AB 1217
directs the OPC to establish "a voluntary sustainable seafood
promotion program." The OPC is not directed to develop rules or
standards nor will it be the enforcement agency for those who
seek voluntary certification. That task will be handled by third
party certifiers.
The draft protocol relies considerably on standards developed by
the Marine Stewardship Council because of their consistency with
the international standards referenced in AB 1217. Those
standards are also voluntary and are open to participants in
fisheries around the world. The proposed OPC draft protocol is
somewhat more rigorous than the MSC protocol, but nevertheless
it would apply only to fishery participants who voluntarily seek
certification. Thus, the bill should be amended to delete the
proposed APA exemption with a legislative declaration that the
program is voluntary.
SUGGESTED AMENDMENTS
AMENDMENT 1
Page 3, lines 8-12, delete and replace with:
(d) The program, each component of the program, and actions
taken by the council to implement the program are based
upon voluntary actions initiated by entities pursuant to
this section.
SUPPORT
CalCoast
Coastal Conservancy
Defenders of Wildlife
EDF
Monterey Bay Aquarium
Monterey Fish Market
Planning and Conservation League
Save Our Shores
Sierra Club California
2 individuals
OPPOSITION
3
Turtle Island Restoration Network
California Fisheries and Seafood Institute
4