BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
                             Senator Fran Pavley, Chair
                                2015 - 2016  Regular 

          Bill No:            SB 1114         Hearing Date:    April 12,  
          2016
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          |Author:    |Allen                  |           |                 |
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          |Version:   |March 29, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|William Craven                                       |
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                      Subject:  Commercial fishing:  swordfish

          BACKGROUND AND EXISTING LAW
          
          The Fish and Game Code, beginning at section 8561, contains the  
          existing provisions of law regarding the drift gill net shark  
          and swordfish fishery. Those provisions establish criteria for  
          permits, transfers of permits, the information required for  
          permits, size of nets and other gear restrictions, restricted  
          areas for gill net fishing, as well as additional provisions. 

          In addition, the State of California has fishery policies to  
          protect endangered sea turtles and other marine life by  
          prohibiting commercial swordfish shallow-set longline fishing  
          within state waters and federal regulations currently prohibit  
          commercial longlining for swordfish within 200 miles of the  
          coast. 

          The California Ocean Protection Council has supported the  
          research and development of alternatives for catching swordfish,  
          most notably deep-set buoy gear. The gear works by dropping  
          weighted hooks as deep as 1,200 feet below the surface, where  
          swordfish tend to stay during the daytime. When an indicator  
          float drops below the surface, fishermen immediately pull in the  
          line.

          According to the Department of Fish and Wildlife (department),  
          the department issued 71 drift gill net permits and 42 harpoon  
          permits in 2015. It considers 26 fishermen to be active drift  







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          gill net fishers, and 5 harpoon fishers are also considered to  
          be active. In 2015, the fleet landed approximately 132 metric  
          tons of swordfish, shark and other marketable species, valued at  
          just under $800,000. Of that, 72.5 metric tons were swordfish,  
          with a value of $630,000. In comparison, the US imported nearly  
          11,000 metric tons of swordfish valued at nearly $90 million in  
          2015. 

          There are provisions under federal law for what are called  
          "federal exempted fishing permits." These allow activities that  
          may otherwise be prohibited and in the case of California  
          swordfish, these permits allow the use of modified drift gill  
          net gear in the Pacific Leatherback Turtle Conservation Area. 

          PROPOSED LAW

          This bill would do all of the following: 

             1.   Findings and declarations include statements regarding  
               the environmental damage caused by drift gill nets to  
               non-target and often rare species such as whales, dolphins,  
               sharks, pinnipeds, and sea turtles. They also contain data  
               related to by-catch, and argue that California should set  
               the standard for sustainable swordfish fishing globally.  
               The findings also point to alternatives that have been  
               developed that are selective and sustainable, most notably  
               deep-set buoy gear. The findings set the stage for a phase  
               out of drift gill nets and for a transition, with economic  
               incentives, of the California swordfish fleet to the use of  
               lower impact fishing gear. 

             2.   The bill, as of March 31, 2017, repeals the existing  
               section on transferring drift gill net swordfish permits  
               and replaces it with a new section that establishes  
               conditions for transfers that would become effective on the  
               same date:  The permittee permanently retires the permit by  
               transferring the permit to an entity engaged in retiring  
               permits, or the permittee exchanges the permit for deep set  
               buoy gear permit. (Note: The entity engaged in retiring  
               permits is likely a nonprofit.) 

             3.   The bill sunsets the current fee for drift gill net  
               permits ($330) and increases it to $1500. 









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             4.   The department would be prohibited from issuing new  
               drift gill net shark and swordfish permits after March 31,  
               2017. Permits for which the department has not been  
               notified of any landings for two successive fishing seasons  
               would be revoked. Permits that have been revoked or  
               surrendered or exchanged would not be transferred or  
               re-issued. Additionally, the bill defines "latent drift  
               gear net permit" as one for which no swordfish or thresher  
               shark landings were reported in at least 3 years between  
               2010 and 2015. 

             5.   The bill defines an actively fished drift gill net  
               permit as one under which swordfish or thresher shark  
               landings were reported in at least 3 years between 2010 and  
               2015. It also establishes thresholds of risk and acceptable  
               take and provides options to the department to assess the  
               risk to protected marine wildlife based on available  
               information. 

             6.   The bill authorizes the department to adopt regulations  
               for a deep-set buoy gear fishery for swordfish consistent  
               with the terms of the bill and federal law. 

             7.   It authorizes the department to issue deep-set buoy gear  
               or similar gear to take swordfish pursuant to federal law  
               when that gear is authorized pursuant to federal law. 

             8.   The bill establishes a protocol and incentives for the  
               issuance of the new permits, as follows: 

               a)     To an active drift gill net permit holder pursuant  
                 to Article 16 of the Fish and Game Code.  
               b)     To a person who has fished with deep set buoy gear  
                 under a federal exempted fishing permit since January 1,  
                 2010. 
               c)     To a person who holds a valid swordfish permit  
                 pursuant to Section 8394. 
               d)     Two additional deep-set buoy gear permits may be  
                 issued to each actively fished drift gill who fished  
                 pursuant to a federal exempted fishing permit if that  
                 federal permit is surrendered within two years of a  
                 future federal authorization to use deep-set buy gear or  
                 similar gear. 
               e)     One additional deep-set buoy gear permit may be  








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                 issued to each actively fished drift gill net permit  
                 holder and each person who fished under a federal  
                 exempted fishing permit if the drift gill permit is  
                 surrendered within 4 years of the upcoming federal  
                 authorization to use deep set buoy gear or similar gear. 
               f)     One permit may be issued to a person who held a  
                 latent drift gill permit prior to January 1, 2017. 
               g)     No additional permits other than those mentioned in  
                 (b)-(f), above, may be granted until 5 years after deep  
                 set buoy hear or similar gear is authorized under federal  
                 law. The department would be able to issue additional  
                 permits to accommodate additional fishing effort and  
                 demonstrated demand if no more than a negligible risk to  
                 protected marine wildlife is shown. 
             1.   The department is charged with the responsibility to  
               create measures and incentives to avoid and minimize the  
               incidence of derelict deep-set buoy gear left at sea which  
               may include provisions for registration and labeling gear  
               as well as incentives for the retrieval and retention of  
               gear. 
             2.   A new fee shall be established at or below a rate  
               sufficient to cover the costs of the department and to  
               transfer the new permits. 
             3.    The Ocean Protection Council (OPC) is directed to  
               provide funding for the innovation and adoption of  
               sustainable commercial fishing methods in the swordfish  
               fishery which may include assistance in purchasing deep-set  
               buoy gear for persons with an exempted fishing permit as of  
               January 1, 2016, issued by the National Marine Fisheries  
               Service and for the first 10 persons who exchange their  
               drift gill net permits for deep-set buoy gear. The OPC is  
               also directed to develop marketing and propose business  
               structures to support a high and stable price for swordfish  
               landed pursuant to these new provisions. 

          ARGUMENTS IN SUPPORT
          
          According to the author, California is the last state on the  
          West Coast that still allows the use of drift gill nets in its  
          swordfish fishery. California's drift gill nets kill or injure  
          approximately 7 times more whales and dolphins than all other  
          observed fisheries in California Oregon, Washington, and Alaska  
          combined, and 13 times more than any other single observed  
          fishery. 








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          A coalition of marine environmental groups and other  
          conservation groups considers the drift gill net fishery for  
          swordfish "the most harmful fishing practice on the West Coast."  


          It supports the aspects of the bill that reduces the number of  
          drift gill nets and the incentives and transition to the more  
          sustainable deep-set buoy gear. 

          The coalition states that California is the last state on the  
          West Coast that still uses drift gillnets in the swordfish  
          fishery and that this gear type has been banned on the high  
          seas, in other states, and in many countries worldwide because  
          of the unavoidable by-catch. 

          Sperm whales (endangered) and Pacific leatherback turtles  
          (endangered) have been prominent victims of by-catch. 

          Two-thirds of the catch in drift gill nets is said to be  
          by-catch. 

          The alternative gear of deep-set buoy gear has had successful  
          trials in California achieved with partial funding from the  
          Ocean Protection Council. The coalition considers this  
          technology to be sustainable by which it means that 94 percent  
          of the catch from this gear can be kept and sold at market. 

          ARGUMENTS IN OPPOSITION
          
          Morro Bay Commercial Fisherman's Organization is in opposition  
          because the phase out of drift gill nets is likely to occur  
          through the regulatory process now underway by state and federal  
          fisheries agencies. Because all swordfish fishing is outside of  
          state waters, this group and most of the opposition believes  
          that there is little or no role for California statute to  
          regulate gear types. 

          The Santa Barbara Chamber of Commerce believes the legislation  
          will destroy a healthy and sustainable California fishery. It  
          considers deep-set gear to be unproven technology and estimates  
          the value of the fishery at $14 million (far exceeding the  
          estimate from the department). 









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          The California Fisheries and Seafood Institute believes that the  
          deep-set buoy gear is experimental and unproven and inadequate  
          to replace the income of the current participants in the  
          fishery. Contrary to the supporters, it states that 90 % of the  
          fish caught by nets in the West Coast swordfish fishery are  
          landed and enjoyed by consumers or released alive. It says that  
          only 3 sea turtle interactions have occurred in the last decade  
          and all three were recorded as being released alive by federal  
          observers. In California, it says there have been no sea turtle  
          mortalities observed since 1999 compared to 42,000 turtles that  
          were hunted and killed legally in 42 countries around the world  
          in 2013 alone. 

          COMMENTS
          
             1.   Assuming the bill moves forward, the author may want to  
               consider amplifying that  other sustainable gear types in  
               addition to deep set gear are covered by the bill. The bill  
               contains an occasional reference to such an option which  
               could provide needed flexibility if in the future other  
               sustainable gear types become technically feasible and  
               commercially available. 
             2.   The author may want to harmonize the two definitions of  
               "latent drift gill net permit" which, while perhaps not  
               inconsistent, are also not identical. 
             3.   The provisions relating to the Ocean Protection Council  
               are perhaps understandably vague at this first hearing  
               pending discussions with the OPC.  The provisions relating  
               to the development of a business model for marketing  
               sustainably harvested swordfish, in particular, could use  
               further development. 
             4.   Although not stated affirmatively in the bill, it is  
               clear from the language that the bill does not affect the  
               legality of existing drift gill net permits. Those  
               fishermen would be able to hold those permits indefinitely  
               but their transfer to others would be covered by this bill.  

             5.   There is no provision for hardship cases or new entrants  
               who would not have landed fish in 3 years, as set forth in  
               the bill. 
             6.   While it is contained in the language of the bill, it is  
               clear the opposition has missed the provision on page 8,  
               line 8, that the department would not issue permits for  
               deep-set buoy gear until it is authorized by federal law. 








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           Double-referral  The Rules Committee referred this bill to both  
          the Committee on Natural Resources and Water and to the  
          Committee on Environmental Quality.  Therefore, if this bill  
          passes this committee, it will be referred to the Committee on  
          Environmental Quality, which will consider the issues within  
          their jurisdiction.  


          SUPPORT
          Turtle Island Restoration Network (sponsor) 
          American Cetacean Society SF Bay Chapter
          Azul 
          BlueVoice.org
          California Coastal Protection Network
          California League of Conservation Voters 
          Climate Parents
          Coastal Environmental Rights Foundation
          Defenders of Wildlife
          Environment California
          Ghost Fishing
          Hollywood Divers
          Kurmalliance
          Marine Animal Rescue 
          Ocean Defenders Alliance
          Oceana
          Public Interest Coalition
          San Diego Coastkeeper
          Save the Sea
          Save the Turtles, Inc
          Sierra Club California
          Surfrider
          The Leatherback Trust
          The Otter Project
          WILDCOAST

          OPPOSITION
          Alliance of Communities for Sustainable Fisheries
          California Fisheries and Seafood Institute 
          Morro Bay Commercial Fishermen's Association
          Santa Barbara Chamber
          One individual









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