BILL ANALYSIS Ķ
AB 2019
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Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 2019 (Fong) - As Amended: April 23, 2014
SUBJECT : Commercial Drift Gill Net Shark and Swordfish Fishery
SUMMARY : Prohibits the use of drift gill nets to take shark
and swordfish for commercial purposes. Specifically, this bill :
1)Prohibits the take of shark and swordfish for commercial
purposes with a drift gill net of any mesh size.
2)Allows for the incidental take of up to two thresher sharks
and two shortfin mako sharks in drift gill nets with a mesh
size smaller than eight inches while fishing for barracuda or
white sea bass, as specified. Requires any thresher shark
taken to not have the fin severed from the carcass until after
the shark is brought ashore.
3)Repeals existing law authorizing the Department of Fish and
Wildlife (DFW) to issue permits for take of shark and
swordfish with drift gill nets for commercial purposes, and
related provisions.
4)Requires DFW to issue a shark and swordfish permit to any
person who held a valid drift gill net shark and swordfish
permit as of January 1, 2015 that has not been suspended or
revoked.
5)Authorizes the Fish and Game Commission (FGC) to establish
conditions for the issuance of a permit if the person's permit
was revoked or the person did not apply for renewal on or
before April 30th, and provides for an appeal under such
circumstances.
6)Establishes the fee for a shark and swordfish permit at $330.
7)Requires persons issued a shark and swordfish commercial
permit after January 31, 2015 to fish only with hand-held hook
line or handthrusted harpoon.
8)Authorizes persons issued a shark or swordfish permit to also
fish with other experimental gear if they have a permit for
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the use of such gear. Prohibits the FGC from issuing an
experimental gear permit authorizing the use of drift gill
nets, pelagic long-lines, or fishing lines anchored to the
ocean bottom.
9)Authorizes one transfer of a shark and swordfish permit to
another vessel per year upon request and payment of a transfer
fee between February 1 and April 30. Authorizes DFW to
approve additional transfers only after receipt of proof of a
compelling reason such as the sinking of a vessel.
10)Establishes a state policy that in all relevant state and
federal proceedings affecting the shark and swordfish fishery,
the State of California shall support prohibition of drift
gill nets targeting swordfish and sharks in the exclusive
economic zone off the West Coast, and oppose the transfer of
state permitting authority over the shark and swordfish
fishery to the federal government.
11)Authorizes the director of the DFW to close the shark and
swordfish fishery, or any area where the fishery is conducted,
if after a public hearing the director determines the action
is necessary to protect the swordfish or thresher shark and
mako shark resources, and to reopen a fishery previously
closed upon a determination that the conditions necessitating
the closure no longer exist.
12)States legislative intent not to permit or encourage the
taking of marlin for commercial purposes, makes it a
misdemeanor to sell or possess for sale or personal use any
marlin, and requires immediate notification of the DFW of any
incidental take of marlin.
13)Provides that this bill shall be known as the Swordfish
Fishery Sustainability and Marine Wildlife Conservation Act,
and states legislative findings and declarations concerning
the importance of California's ocean ecosystem and the impacts
of drift gill nets. States legislative intent that drift gill
nets targeting swordfish and sharks be prohibited in state and
federal waters off California, that pelagic longlines remain
prohibited, and that the state take steps to eliminate drift
gill nets in state and federal proceedings affecting shark and
swordfish fisheries on the West Coast.
EXISTING LAW :
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1)Authorizes the DFW to issue permits for the take of shark and
swordfish with drift gill nets. Prohibits the take of shark
and swordfish for commercial purposes with drift gill nets
except under a valid drift gill net shark and swordfish permit
issued by the DFW. Provides that a permit is not required for
the taking of shark and swordfish with drift gill nets with a
mesh size smaller than eight inches in stretched mesh and
twine size no. 18.
2)Regulates the shark and swordfish drift gill net fishery under
state law as a limited entry fishery. Requires permits to be
issued to any prior permittee with a valid permit. Allows for
limited transfers of permits to other vessels. Establishes
seasons and other time and area restrictions for shark and
swordfish drift gill net fishing, and regulates the size,
length and allowed depth of gill nets.
3)Under federal law, known as the Magnuson-Stevens Fishery
Conservation and Management Act , authorizes the federal
Pacific Fishery Management Council to manage the shark and
swordfish drift gill net fishery under the Highly Migratory
Species Fishery Management Plan. The Act requires efforts to
minimize bycatch, while enabling sustainable catch of
marketable species to meet consumer demand for locally sourced
seafood.
4)Under federal law, known as the Marine Mammal Protection Act
(MMPA), prohibits with certain exceptions, the take of marine
mammals in U.S. waters. Requires fisheries to reduce
incidental mortality and serious injury of marine mammals to
insignificant levels approaching a zero rate, known as the
Zero Mortality Rate Goal.
FISCAL EFFECT : Unknown
COMMENTS : This bill would ban the use of drift gill nets to
take shark and swordfish for commercial purposes. It would
authorize the take of shark and swordfish with a valid permit
using hand held hook and line or harpoon. Drift gill nets are
mile long mesh nets used to fish for swordfish and sharks. The
nets are left in the water for extended periods of time and
allowed to drift in the current. While the nets are in the
water, non-target "bycatch", including fish, marine mammals, and
other marine species can become entangled in the nets. Gear
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modifications implemented in the 1990s, such as acoustic pingers
and net extenders, and other regulatory restrictions such as
season and area closures, have reduced but not eliminated
unintentional bycatch. Recent estimates are that over 60% of
the total catch in drift gill nets off California are non-target
bycatch that is discarded. Over 100 marine mammals, including
dolphins, whales, sea lions, seals, and other species are killed
in drift gill nets every year. Non-target species that have
been observed and documented to be killed in drift gill nets
include but are not limited to, bottlenose dolphins, long-beaked
common dolphins, short-beaked common dolphins, northern right
whale dolphins, Pacific white-sided dolphins, California sea
lions, northern elephant seals, Risso's dolphins, short-finned
pilot whales, gray whale, humpback whale, sperm whale and minke
whale. Thousands of common molas (ocean sunfish), blue sharks
and other non-target fish are also unintentionally caught in the
nets. While many of these non-target fish are released alive,
the survival rate of these animals is unknown, since the fish
can be injured or cut in the nets and may be susceptible to
subsequent infection.
Drift gill net fisheries are managed by state and federal
agencies with overlapping jurisdictions, including the National
Marine Fisheries Service (NMFS), the Pacific Fisheries
Management Council, the state DFW, and the FGC.
The author and sponsors of this bill assert that drift gill nets
are a draconian method of fishing that indiscriminately kills
too many non-target animals. While gear modifications have
reduced the bycatch of some species, they assert that there are
still too many non-target animals killed in the nets and the
bycatch level is unacceptably high. They are particularly
concerned that over 100 marine mammals on average are killed in
the drift gill nets each year, including whales and dolphins.
While drift gill net vessels are subject to federal observation
requirements, the rate of observations is low, with only 15.6%
of fishing vessels observed on average over the past 5 years.
In 2010, two sperm whales, an endangered species, were observed
taken in drift gill nets. As a result, in 2013 the drift gill
net fishery was designated a Category 1 fishery under the MMPA,
and emergency regulations were adopted requiring 100%
observation on all drift gill net vessels fishing in areas where
sperm whales migrate, with a requirement that the fishery
immediately be shut down if any sperm whale were observed taken.
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The author and sponsors are also concerned about potential of
endangered sea turtles being entangled in the nets, though the
number of observed take of sea turtles has declined
significantly since the designation of the Pacific Leatherback
Conservation Area in 2001 (discussed further below). The author
and sponsors also note that drift gill nets are already
prohibited by the states of Washington and Oregon.
History of the Fishery: The swordfish drift gill net fishery
takes place in federal waters, primarily off the coast of
southern California with some effort occurring from Morro Bay
north to Monterey Bay. Fishery effort and landings in the
fishery have been declining for some time. In terms of
poundage, swordfish landings have declined from 4 million pounds
in the year 2000, to just slightly over 600,000 pounds in 2012.
The dollar value of California swordfish landings similarly fell
from a high of $23 million in 1985, to $1.2 million in 2009, to
less than $1 million in 2012. Consequently, landings are now
less than 10% of what they were 30 years ago, and are currently
on average less than 1% of the total value of commercial fish
landings in the state. The number of vessels actively
participating in the fishery is also at an historic low. In
2011 there were 76 permits in effect but only 19 vessels
actively engaged in fishing. In 2013 the number of actively
fishing vessels dropped to 17.
According to the DFW, in 2013, the total value of catch landed
with drift gillnet gear was $823,256. Of this, swordfish
accounted for $600,670 of the total, while thresher shark
accounted for $92,029 of the total. Tuna catches totaled
$58,497, opah $41,366, mako shark $28,420, and louvar $2,275.
The tax revenue paid to DFW for 2013 catches made with drift
gillnet gear was $4,457.35. It should also be noted that
fishermen currently participating in the drift gill net fishery
note that these landings support other processing and service
jobs in local port communities.
NMFS perspective: NMFS as the federal fishery management agency
maintains that, with the exception of sperm whales, the bycatch
of marine mammals in the fishery is not having a population
level impact on the species, and has not been determined to
exceed the "potential biological removal (PBR) level". PBR is
defined as the maximum number of animals, not including natural
mortalities that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
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population. NMFS maintains that the west coast drift gill net
fishery operates under strict regulations including area
closures and special gear restrictions. Recent correspondence
from NMFS's west coast fishery managers indicates that federal
fishery managers are concerned about the future viability of the
west coast swordfish fishery because the fishery has declined
substantially, due in large part to increased regulation to
protect sea turtles and marine mammals. As a result, the stock
of swordfish is underutilized. Development of alternative,
economically feasible, low-bycatch types of gear is thus a
priority objective of the agency. Experiments with alternative
gear types are ongoing off the southern California coast with
deep-set buoy gear which is used in the commercial swordfish
fishery in the East Coast. Sea Grant, a research program of
NMFS housed at Scripps Institute in San Diego, is also
experimenting with new deep-set long-line gear that involves
setting hooks at depths below the layer inhabited by sea
turtles. Reports indicate experimental deployments of this gear
have so far been inconclusive and more testing is needed.
NMFS asserts that the harpoon fishery and the deep-set buoy gear
research underway serve distinct market niches that are
artisanal in nature and cannot meet consumer demand like the
drift gill net or pelagic longline fisheries. NMFS also asserts
that landings of swordfish are important for maintaining market
infrastructure at points of landing in west coast fishing
communities, and that disallowing the landings would increase
demand for more imports from foreign fleets which have higher
rates of bycatch. The mandate under the Magnuson Stevens Act is
to minimize rather than eliminate bycatch, while enabling
sustainable catch of marketable species to meet consumer demand
for locally sourced seafood. NMFS sees its role to minimize
bycatch and ensure at-risk species do not fall below levels that
support population replacement or growth, to ensure endangered
species are not likely to be jeopardized, and, for all marine
mammals protected under the MMPA, to reduce but not eliminate
bycatch.
The sponsors of this bill counter such arguments by pointing out
that the MMPA actually requires that fisheries reduce incidental
mortality and serious injury of all marine mammals to
insignificant levels approaching a zero rate. To do this, NMFS
defines a species "insignificant threshold" as 10% of the PBR
for that species. The sponsors and supporters, however,
maintain that having over 100 marine mammals killed every year
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in drift gill nets is nevertheless an unacceptably high level of
bycatch, and that PBR stock levels do not take into account
other ecosystem impacts of drift gill nets. The fact that other
countries may have fishery practices that result in even higher
bycatch levels does not mean California should regulate to the
lowest common denominator. They further assert that shark and
swordfish commercial landings are such a relatively small
percentage of the total commercial landings in California that
the banning of drift gill nets should have little economic
impact on port communities. With existing fishing effort in the
drift gill net fishery at historic lows and only 17 vessels
actively participating in the fishery, the author and sponsors
assert resources should instead be directed to assisting these
fishermen in either transitioning to other fisheries, which many
of them already participate in, or into research on other gear
types that have less impact on the marine ecosystem.
Whales: In 2010, the take of 2 endangered sperm whales in drift
gill nets was observed. One of the whales died and one was
seriously injured. NMFS extrapolated, based on the percentage
of observed fishing trips, that an estimated total take of 16
sperm whales may have occurred. In September 2013 NMFS
implemented temporary emergency regulations requiring 100%
certified observer coverage on all drift gill net vessels
fishing in waters deeper than 2,012 meters (seaward of the 1,100
fathom contour line), and required vessel monitoring systems on
all drift gill net vessels. The regulations also required that
the fishery be shut down if the take of one sperm whale was
observed. NMFS determined that with implementation of the
emergency rule, mortality incidental to the drift gill net
fishery would have a negligible impact for purposes of MMPA
permit requirements for fin whale, humpback whale and sperm
whale. These temporary rules expired January 31, 2014 and to
date have not been renewed. The Pacific Offshore Take Reduction
Team of NMFS has been reconvened to develop other long term
measures to reduce sperm whale mortality and serious injury. In
addition to sperm whales, other whales that have been observed
entangled by drift gill nets in the past include gray whale,
humpback whale, pilot whale and minke whale.
As a result of the observed sperm whale take in 2010, the drift
gill net fishery was reclassified as a Category 1 fishery in
2013. A Category 1 fishery is defined as a commercial fishery
that has been determined to have frequent incidental mortality
and serious injury of marine mammals. "Frequent" is defined as
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the fishery by itself being responsible for annual removal of
50% or more of any stock's PBR level.
Turtles: The NMFS website acknowledges that drift gillnetting
has been a major source of mortality for sea turtle species.
All sea turtles found in U.S. waters are listed as endangered or
threatened under the Endangered Species Act. Incidental take or
bycatch in fishing gear is one of the main sources of sea turtle
injury and mortality nationwide. In 2001, following litigation
by conservation organizations, the Pacific Leatherback
Conservation Area was established to protect migrating
leatherback sea turtles. Drift gill net fishing is prohibited
in this area north of Point Conception from August 15 to
November 15 to protect the turtles. Additional closures apply
south of Point Conception during El Niņo conditions in August
and January to protect migrating Pacific loggerhead turtles.
The closures have significantly reduced the numbers of sea
turtle deaths off California's coast. However, proposals have
been made to modify the restrictions in recent years. The
Pacific Leatherback Sea Turtle is also California's state marine
reptile.
Other conservation measures have been enacted to reduce bycatch,
including specific gear requirements such as acoustic pingers
that emit sound to deter marine mammals, and net extenders that
drop the net below the surface to allow marine mammals and
turtles to pass over the nets. NMFS data shows that there was a
significant reduction in bycatch for some species following the
implementation of pinger use requirements. According to a NMFS
2010 report, since acoustic pingers were required in 1996,
overall cetacean (whales and dolphins) entanglement rates
declined by 50%, and bycatch was virtually eliminated for beaked
whales. Significant reductions in bycatch were also documented
for northern elephant seals, however, bycatch of other pinnipeds
(seals and sea lions) increased. Survival rates for whales,
dolphins and seals caught in drift gill nets is generally low.
Blue shark survival rates range from 24-49%. With regard to
sperm whales, NMFS most current data indicates that between 1990
and 2012, 10 sperm whales were observed entangled in nets. Five
died, 2 were seriously injured and 3 were released. The current
annual estimate of bycatch for sperm whales is 3.2 over the five
year period of 2006-2010, resulting in a bycatch estimate of 16.
The report indicates that whether pingers are effective in
reducing sperm whale entanglements is inconclusive due to
limited data.
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Support Arguments : Supporters assert drift gill nets targeting
swordfish and thresher sharks are the single greatest direct
threat to ocean wildlife in this region. More than half of all
the animals caught in the drift gill nets are thrown back into
the ocean. More than 100 marine mammals are caught and drowned
in drift gill nets each year, and thousands of other non-target
animals are also caught, many of which die or are seriously
injured. Alternative fishing gear is available and
participation in the drift gill net fishery is at a historic
low, making this the time to eliminate drift gill nets and
transition to more sustainable fishing methods. In spite of
past efforts to reduce bycatch with pingers and other gear
modifications, drift gill nets continue to indiscriminately
impact sea mammals, turtles, sharks and even birds. Swordfish
and sharks can continue to be caught with harpoons and fishing
lines, and other experimental gear is also being tested and may
soon be available. Particularly promising are initial studies
with buoy gear in southern California, and increases in surface
hook and line landings of swordfish. In addition to needlessly
killing dolphins, whales, seals and sea lions each year, drift
gill nets are a cruel and inhumane way to kill animals. Marine
mammals drown in the nets, or if they break free may remain
entangled in netting which restricts movement and adds drag,
depleting energy reserves and in many cases eventually leading
to death. Trying to keep marine mammal takes under PBR levels
is the wrong goal, since managers should be striving to
eliminate mortality and serious injury. The MMPA's zero
mortality goal led to the availability of dolphin safe tuna, but
consumers still do not have dolphin safe swordfish in the drift
gillnet fishery off California. Supporters also point to a lack
of evidence that banning drift gillnets off California will lead
to increased harvest by foreign fleets with higher bycatch, also
noting that the MMPA requires the Secretary of the Treasury to
ban importation of commercial fish caught in ways that result in
incidental take of marine mammals in excess of United States
standards.
Opposition Arguments : Opponents include researchers who have
worked on reducing incidental mortality in the drift gill net
fishery and who assert those efforts have been successful, with
measures such as limiting fishing effort, time area closures,
fishing gear modifications, and mandatory use of acoustic
pingers, in dramatically reducing incidental mortality of
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cetaceans and turtles. Opponents of this bill also claim that
most of the sea turtle deaths from fishing gear occur in other
regions of the Pacific, and banning drift gill nets here will
result in more sea turtle deaths, because the effort will be
transferred to these other areas. They assert this bill would
shut down the swordfish drift gill net fishery because it is not
economically viable for the fishery to operate in the manner
proposed in this bill with hook and line or harpoons. This bill
would eliminate a sustainable, highly regulated fishery and
promote more imports of fish from less sustainable fisheries,
which would be a net loss for conservation. Opponents also
include fishermen currently participating in the drift gill net
fishery, whose families have participated in the fishery for
multiple generations. They assert this bill will eliminate
their family livelihood and have significant economic impacts on
local port communities, potentially affecting hundreds of jobs.
Opponents also object to the sponsors' of this bill's
characterization of drift gill nets as curtains of death, and
assert that the fishery is one of the most heavily regulated and
responsibly managed fisheries in the world. They note that
since 2001 there have only been three observed takes of sea
turtles in the drift gill net fishery, and that while there have
been takes of California sea lions in the nets, the sea lion
population overall has grown. Opponents assert harpoon and hook
and line gear methods are not practical alternatives for
commercial harvest of swordfish, and note that the Monterey Bay
Aquarium's Seafood Watch program affords a "good alternative"
rating to both west coast drift gill net fisheries and the
Hawaii longline fishery. As an alternative to this bill, some
opponents also recommend that NMFS and the Pacific Fisheries
Management Council be given more time to identify reasonable
alternatives to the drift gill net fishery with the goal of
maintaining an economically viable domestic swordfish fishery.
The Nature Conservancy does not have a position on this bill but
submitted a letter of concern indicating they have chosen to
engage with the fishery in a collaborative working relationship
to help minimize bycatch while maintaining a profitable
swordfish fishery. TNC's strategy focuses on reducing capacity
through a voluntary buyout of latent permits and drift gill net
gear, working on developing consensus on performance standards,
and testing of alternative gear and harvest methods. TNC is a
member of the Pacific Offshore Cetacean Take Reduction Team.
REGISTERED SUPPORT / OPPOSITION :
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Support
Oceana (co-sponsor)
Turtle Island Restoration Network (co-sponsor)
Action for Animals
American Cetacean Society
California Association for Recreational Fishing
Center for Biological Diversity
Center for Oceanic Awareness, Research & Education
Defenders of Wildlife
Farallon Institute
Friends of the Earth
Greenpeace
Humane Society of the United States
I love blue sea
Light & Motion
Native Animal Rescue
Ocean Revolution
One World One Ocean
Passionfish Restaurant
Save Our Shores
Save the Whales
SeaWorld
Shark Stewards
Sierra Club California
Supervisor Jane Parker, County of Monterey
The National Humane Education Society
The Otter Project
Wild Aid
Wildcoast
Wyland
Opposition
Aquarium of the Pacific
California Drift Gill Net Alliance
California Wetfish Producers Association
Cascadia Research Collective
Catalina Offshore Products
Chesapeake Fish Co.
Hawaii Longline Association
Pfleger Institute of Environmental Research
Seafood for the Future
Seeadler Enterprises LLC, F.V. Seeadler
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West Coast Seafood Processors Association
Several individuals
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096