BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 226


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          Date of Hearing:  April 14, 2015 


                            ASSEMBLY COMMITTEE ON HEALTH


                                    Bonta, Chair


          AB  
                        226 (Atkins) - As Amended April 7, 2015


          SUBJECT:  Retail food safety:  fishermen's markets.


          SUMMARY:  Defines and creates a framework for a "fishermen's  
          market" as a type of nonpermanent food facility that meets  
          specific requirements.  Specifically, this bill:  



          1)Creates a fishermen's market as a type of nonpermanent food  
            facility that: 

             a)   Is operated by a California Department of Fish and  
               Wildlife (DFW) licensed commercial fisherman or an entity  
               representing California seafood producers; 

             b)   Sells only raw fresh fish, raw edible aquatic plants, or  
               fresh frozen fish, as defined, that is caught by DFW  
               licensed commercial fishermen or harvested by a California  
               registered aquaculturist; and,



             c)   Sells directly to consumers.


              
          2)Establishes guidelines for a fishermen's market, including  
            requirements that:








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             a)   The fishermen's market must comply with various  
               provisions of the California Retail Food Code (CRFC), as  
               specified, including general provisions, contamination,  
               sanitation, and plumbing, compliance and enforcement; 

             b)   The fishermen's market must comply with additional  
               handwashing, warewashing, food safety, and facilities  
               requirements, as specified;



             c)   Fish sold in the fishermen's market must be caught  
               legally by licensed commercial fishermen and that the  
               license and contact information must be available upon  
               request of the local enforcement agency;



             d)   The name of fisherman, vessel or farm, and acceptable  
               fishermen's market name of the fish for sale must be  
               displayed for customers to see.  Defines acceptable  
               fishermen's market name as a name recognized by the U.S.  
               Food and Drug Administration (FDA) as a suitable "statement  
               of identity," as defined;



             e)   Allows the fishermen's market to provide, under a  
               separate health permit and applicable requirements, a  
               service that fillets, cuts, or packages fish for customers;  
               and



             f)   The fishermen's market must submit a permit application  
               and site plan to the enforcement agency that includes a map  
               of the fishermen's market, as specified, details of the  
               food booth construction, policies, and procedures for,  
               among other things, food handling, temperature control,  
               cleaning, and sanitizing, as specified, and a list of names  
               of participating fishermen or aquaculturists, and copies of  








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               their licenses or registrations. 


          EXISTING  
          LAW:1)

          1)Enacts regulation on fishing, including gear type, and  
            provides for licensing requirements for specific types of  
            fishing, under the jurisdiction of the DFW. 

          2)Establishes the CRFC, which establishes health and sanitation  
            standards for retail food facilities, as defined.  Makes the  
            Department of Public Health responsible for the adoption of  
            regulations to implement and administer CRFC and vests local  
            enforcement agencies with primary responsibility for  
            enforcement of CRFC.



          3)Defines a food facility as an operation that stores, prepares,  
            packages, serves, vends, or otherwise provides food for human  
            consumption, on or off the premises, regardless of whether  
            there is a charge, at the retail level.  Food facilities  
            include, but are not limited to, permanent and nonpermanent  
            facilities, public and private school cafeterias, restricted  
            food service facilities, licensed health care facilities,  
            commissaries, mobile food facilities, mobile support units,  
            temporary food facilities, vending machines, certified  
            farmers' markets (CFMs), and farm stands.



          4)Allows California farmers to sell California grown fresh  
            fruits, nuts, and vegetables that they produce directly to the  
            public through CFMs under the Direct Marketing Law.



          5)Defines "certified farmers' market" as a location that is  
            certified through the enforcement officers of the county  
            agricultural commissioners and operated pursuant to provisions  
            of existing law that permit the direct marketing of  








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            agricultural products.



          6)Requires a permit to be obtained by the person or organization  
            responsible for facilities that are shared by two or more food  
            facilities, in addition to a permit issued to each food  
            facility participating in a community event (applies to  
            operators of CFMs where temporary or mobile food facilities  
            are selling food).



          7)Establishes food safety and sanitation requirements for CFMs  
            governing food preparation, storage, and sampling, among other  
            things.  Prohibits food preparation at CFMs with the exception  
            of food samples


          FISCAL EFFECT:  This bill has not been analyzed by a fiscal  
          committee. 


          COMMENTS: 


          1)PURPOSE OF THIS BILL.  According to the author, this bill is  
            necessary to allow California fisherman to organize and sell  
            their wares in ways similar to popular and well-established  
            CFMs.  This bill is a result of a County of San Diego convened  
            stakeholder group which developed recommendations for  
            legislative changes to state law that would streamline the  
            permitting process and allow for future growth of fishermen's  
            markets.  The author states that this bill will support  
            increased access to fresh seafood and support the fishing  
            industry in California by expanding the opportunities for the  
            public to have direct access to fresh seafood and encouraging  
            the availability of Fishermen's markets within the state.

          2)BACKGROUND: 
             a)   CERTIFIED FARMERS' MARKETS.  Prior to 1977, regulations  
               required farmers to properly pack, size, and label their  








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               fresh fruits, nuts, and vegetables in standard containers  
               to transport and sell in markets anywhere other than the  
               farm site.  Following the enactment of the federal Farmer  
               to Consumer Direct Marketing Act of 1976, California  
               Department of Food and Agriculture enacted regulations that  
               exempted farmers from packing, sizing and labeling  
               requirements for fresh fruits, nuts, and vegetables and  
               enabled them to sell products they grow at CFMs, provided  
               they receive certification from the county agricultural  
               commissioner.  CFMs have become established in many  
               California communities, as have other outlets for direct  
               marketing, such as farm stands and community supported  
               agriculture.  There are roughly 800 farmers' markets in  
               California, a significant number of which operate  
               year-round.

             A CFM must have a certificate issued by the county  
               agricultural commissioner authorizing it as a location  
               where certified producers can sell their products directly  
               to consumers, organizations, or entities that subsequently  
               sell or distribute the products to end users.  A CFM is  
               also considered to be a food facility and must have a  
               health permit issued by the local environmental health  
               authority.  It may be operated by one or more certified  
               producers, by a non-profit organization, or by a local  
               governmental agency.  Each vendor selling certifiable  
               agricultural products at the CFM must obtain a Certified  
               Producer's Certificate, which allows them to sell fresh  
               fruits, nuts, vegetables, shell eggs, honey, cut flowers,  
               and nursery stock.  These farmers must be certified and  
               annually inspected by their local county agricultural  
               commissioner to verify that all products are grown on the  
               farmer's property.  A CFM may prepare market rules  
               specifying the admission of producers, admission of  
               agricultural products, and the removal of producers from  
               the market.  A CFM has the authority to establish rules  
               regulating the type and number of producers, the type and  
               number of agricultural products, and the selling methods.   
               Aquacultured (farmed) fish grown in California-controlled  
               waters (such as catfish, trout, and oysters) may be sold at  
               a CFM as an "agricultural product," but ocean caught fish  
               cannot be certified as such.  Individual CFM managers may  








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               choose whether or not to additionally allow ocean fish and  
               shellfish to be sold in a designated "nonagricultural  
               product" area, which can also include other items such as  
               bakery good and crafts.  
             b)     TUNA HARBOR DOCKSIDE MARKET.  The County of San Diego,  
               as part of its Live Well San Diego initiative, supports  
               improved access to and the promotion of the advantages of  
               local, fresh food, including locally-caught fresh fish.  As  
               part of this effort, and in support of local fishermen,  
               aquaculturists, and San Diego's Blue Economy, the County of  
               San Diego partnered with the San Diego Unified Port  
               District to identify a location where commercial fishermen  
               could sell locally-caught fresh fish directly to consumers.  
                This resulted in the opening of the Tuna Harbor Dockside  
               Fishermen's Market in August of 2014.   The County of San  
               Diego reviewed existing state law with a local stakeholder  
               group including local fishermen, aquaculturists, the Port  
               of San Diego, the National Marine Fisheries Service, the  
               Maritime Alliance, University of California San Diego  
               Scripps Institute of Oceanography, and others, and  
               identified several issues that can be streamlined to better  
               accommodate open air fresh catch Fishermen's Markets.  In  
               the process of opening the Tuna Harbor Dockside Market, the  
               County and stakeholders identified barriers and developed  
               legislative proposals to address them.  


             c)   THE FDA SEAFOOD LIST GUIDANCE ON NAMING.  According to  
               the FDA, the Federal Government has worked to provide  
               consistent and scientifically sound recommendations to  
               industry and consumers about acceptable market names for  
               seafood sold in interstate commerce.  This advice was  
               consolidated in 1988 when The Fish List was first published  
               by FDA in cooperation with the National Marine Fisheries  
               Service to provide a source of names that would facilitate  
               consistency and order in the U.S. marketplace and reduce  
               confusion among consumers.  In 1993, The Fish List was  
               revised to include the acceptable market names for domestic  
               and imported invertebrate species sold in interstate  
               commerce, and renamed The Seafood List.  The Seafood List  
               assists manufacturers in properly labeling seafood and  
               reflects the acceptable market names of new species  








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               introduced into the U.S. marketplace.  

          The use of acceptable market names is essential in the  
          identification of seafood because of the exceptional number and  
          variety of species represented by this unique category of foods.  
           The unparalleled diversity in this category of similar foods  
          means that very few species have just one nationally recognized,  
          common or usual name that allows consumers to unambiguously  
          identify a species in the marketplace.  Typically, even the most  
          popular and widely consumed species have acceptable market names  
          that are shared with other species.  For example, "salmon,"  
          "bass," "tuna," "cod," "halibut," and "snapper" are names  
          commonly used to identify particular species of fish, but these  
          are also names that are often used to represent a group of  
          finfish species.  When used as the market name, the group name  
          may properly encompass and adequately identify for consumers any  
          member of the group, but it does not provide enough information  
          for a consumer to identify the specific species, if a consumer  
          desires that level of specificity.  





             d)   COMMERCIAL FISHING AND AQUACULTURE.  Commercial fishing  
               and aquaculture are governed by the Fish and Game Code and  
               regulated by DFW.  There are many different types of  
               commercial fishing licenses, depending on various factors  
               such as the type of vessel, type of catch, or location of  
               catch.  When fish are landed in California - unloaded onto  
               a dock - state law requires preparation of a landing  
               receipt that must include the location the fish was caught,  
               among other things.   A licensed commercial fisherman who  
               has permits to fish in multiple states could catch fish in  
               one state and land in another, which would be reflected in  
               the landing receipt.  State waters are limited to three  
               miles off the coast, federal waters are from three-to-200  
               miles, and international waters are more than 200 miles  
               off-shore.  DFW has been delegated authority to manage many  
               fisheries.  For example, Dungeness crab caught outside  
               three miles in federal waters would be handled just like  
               fish caught in state waters.  Commercial fishing  








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               entitlements are not required for aquaculturists, although  
               they are required to register with DFW.  Several types of  
               commercial fish businesses, separate from commercial  
               fishing, are licensed through DFW including fish importer,  
               fish retailer, fish wholesaler, and others.  
            3)SUPPORT.  The San Diego Regional Chamber of Commerce, one of the  
            cosponsors of this bill, states that this provides greater  
            access to fresh seafood, financially support those who catch  
            it, and allows the community to connect with the local fishing  
            industry.  Supporters of this bill state that it is necessary  
            to address the gap in existing law and regulation by allowing  
            commercial fishermen to organize under a single permit for  
            fishermen's markets in a style similar to CFMs.  According to  
            the Food & Beverage Association of San Diego, fishermen's  
            markets allow local residents, for the first time in many  
            years to choose their next meal from the fresh catch brought  
            ashore by local fishermen and support the local fishing fleet.
              


          4)RELATED  
            LEGISLATION.  
             a)   AB 143 (Wood) expands an exemption in the CRFC allowing  
               wine tasting rooms that currently only serve crackers to  
               also serve pretzels or prepackaged non-potentially  
               hazardous foods.  AB 143 is pending in this Committee. 

             b)   AB 724 (Dodd) revises the definition of community event  
               to include a district fair, and would require a temporary  
               food facility to be granted a permit to operate at a  
               community event if the enforcement agency makes a  
               determination that the temporary food facility meets  
               specified requirements, and requires the permit to be  
               issued for the entire duration of the community event.  AB  
               724 is pending in this Committee.



             c)   AB 820 (Stone) provides that it is unlawful to sell or  
               offer for sale any fresh, frozen, or processed fish or  
               shellfish intended for human consumption, without clearly  
               identifying whether the fish was wild caught or farm  








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               raised.  Prohibits a restaurant from knowingly  
               misidentifying whether the fish was wild caught or farm  
               raised.  AB 820 is pending in Assembly Agriculture  
               Committee. 



             d)   AB 1076 (Mayes) exempts from the definition of a food  
               facility, a snack bar operated by a charitable nonprofit  
               organization and authorizes snack bars to undertake limited  
               food preparation, as defined.  AB 1076 is pending in this  
               Committee.



          5)PREVIOUS LEGISLATION.

             a)     AB 2539 (Ting), Chapter 907, Statutes of 2014, made  
               various changes to the rules governing CFMs, including  
               requiring all harvested, cut, wrapped, or otherwise  
               processed meat, poultry, and fish products offered for sale  
               in a farmers' market to be from approved sources and to be  
               maintained at 41 degrees Fahrenheit.  
             b)     AB 593 (Strom-Martin), Chapter 833, Statutes of 1999,  
               codifies regulations exempting direct marketers from  
               specified packing and labeling standards, amends fee  
               structures, and authorizes farmers' markets to establish  
               rules and procedures.

          6)POLICY COMMENT.  Consumers shopping at California CFMs have  
            some assurance that the produce is grown in this state.  Ocean  
            caught fish are, by definition, not grown in California.   
            Because of the popularity of CFMs, the consumer may have some  
            expectation that they are buying at a fishermen's market is a  
            "local" product.  It is unclear whether this bill, as drafted,  
            would allow globally imported fish to be sold at a fishermen's  
            market.  The author may wish to consider either excluding  
            imported fish from the market or requiring disclosure from the  
            vendor if imported fish is being sold. 

          7)TECHNICAL AMENDMENT.  To correct a drafting error, the author  
            would like to make the following change: 








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               114378.3. (a) A permit application and site plan shall be  
               submitted to the enforcement agency at least two weeks  
               prior to the operation of a fishermen's market. Only  
               California-  registered  licensed commercial fishermen,  
                California-registered aquaculturists,  or an entity  
               representing California seafood producers may act as the  
               responsible person and sole permitholder for a fishermen's  
               market.



          REGISTERED SUPPORT / OPPOSITION:


          Support




          San Diego County Board of Supervisors (co-sponsor)
          San Diego Regional Chamber of Commerce (co-sponsor)
          Unified Port of San Diego (co-sponsor)
          California Association of Environmental Health Administrators 
          California Aquaculture Association
          California Fisheries and Seafood Institute
          California Sea Grant College Program
          City of San Diego
          Food & Beverage Association of San Diego
          San Diego Fishermen's Working Group
          San Diego Regional Chamber of Commerce
          Slow Food California


          Opposition


          None on file.


          Analysis Prepared  
          by:              Dharia McGrew / HEALTH / (916) 319-2097









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