BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          Bill No:            SB 1287         Hearing Date:    April 12,  
          2016
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          |Author:    |McGuire                |           |                 |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Katharine Moore                                      |
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                    Subject:  Commercial fishing:  Dungeness crab

          BACKGROUND AND EXISTING LAW
          Existing law provides for the regulation of the Dungeness crab  
          fishery.  The Dungeness Crab Task Force (task force) is a forum  
          for diverse industry interests to review and evaluate Dungeness  
          crab fishery issues and make management recommendations to the  
          Legislature, the Department of Fish and Wildlife (department)  
          and the Fish and Game Commission.  According to the task force,  
          the state's commercial Dungeness crab fishery is one of the most  
          productive fisheries, by value, in the state, with an average  
          value of about $48.3 million per vessel per calendar year.

          The department-managed commercial California Dungeness crab  
          fishery is a restricted fishery (in other words, only those who  
          meet certain criteria may purchase the appropriate permits to  
          participate in the fishery).  In order to obtain a Dungeness  
          crab vessel permit, the owner must possess a valid commercial  
          fishing license, a valid commercial boat registration and must  
          have a valid earlier Dungeness crab vessel permit to renew. In  
          addition to these requirements, permits for the traps that will  
          be used must also be obtained.  California has a tiered crab  
          trap limit fishery where, based upon historical landings, a  
          certain number of traps are authorized for each permit holder in  
          a given tier, as specified.  The biennial fees for these traps  
          include a crab trap limit permit (of not more than $1,000) and  
          trap tags (of not more than $5 per trap) (see Fish and Game Code  
          §8276.5).  Each trap has a permanent tag with the owner's name  
          and phone number on it and each trap tag has the valid  







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          department Dungeness crab permit number and year on it.  The  
          buoy attached to the trap to help mark its location at the water  
          surface has the commercial fishing license number of the owner  
          attached to it.

          The original task force was created by SB 1690 (Wiggins, c. 727,  
          Statutes of 2008) and "sunsetted" in 2011.  The task force was  
          re-established by SB 369 (Evans, c. 335, Statutes of 2011) later  
          that same year.  SB 369 contained the provisions that  
          established the tiered crab limit fishery.  The task force  
          continues to review and evaluate fishery issues, including the  
          tiered crab limit fishery and is required to provide  
          recommendations to the Legislature by January 1, 2017.  The task  
          force and related Dungeness crab fishing statutory provisions  
          all sunset on April 1, 2019.

          On January 15, 2016, the task force released a list of initial  
          recommendations.  These include, among others:
          1)Expressing concern about whale entanglements in Dungeness crab  
            gear.
          2)Establishing a statewide industry-funded program to retrieve  
            lost fishing gear (with departmental involvement).
          3)Allowing waivers from certain crab permit fees for those whose  
            mandatory military service obligations will not allow  
            participation in the fishery for a season or seasons.
          4)Allowing vessels containing traps with valid Oregon and  
            Washington trap tags to transit the state's waters without  
            state-required permits if certain conditions are met. 
          5)Revising state law that prohibits commercial Dungeness crab  
            trap permitholders from fishing in multiple management areas  
            for 30 days when one management area opens for fishing after  
            another due to start-delaying conditions (these are "fair  
            start" provisions).

          There were 61 whale entanglements in fishing gear off the US  
          West Coast in 2015.  This is the highest total since records  
          started being kept in 1982.  As recently as 2002 fewer than 5  
          entanglements were reported per year.  Entangled whales include  
          those, such as the humpback, that are protected under the  
          Endangered Species Act and/or the Marine Mammal Protection Act.   
          It is not known with certainty what factors are responsible for  
          this recent steep rise in entanglements.  Changes in whale  
          number, fishery location and efforts, and ocean conditions,  
          among others, have been suggested as possible contributors.   








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          Although most of the gear responsible for the entanglements is  
          not specifically known, at least 11 of the entanglements were  
          associated with the Dungeness crab fishery.

          Over the last two commercial Dungeness crab seasons, pilot  
          projects implementing voluntary lost fishing gear recovery  
          programs have been operated statewide.  The SeaDoc Society in  
          partnership with Humboldt State University and the Half Moon Bay  
          Seafood Marketing Association in partnership with the Natural  
          Conservancy have both administered fishermen-led programs that  
          have resulted in the recovery of hundreds of lost and abandoned  
          traps.  Results ranged from 18 traps and additional equipment in  
          one day of retrieval effort to about 300 traps over 7 days of  
          retrieval effort.  The department, in collaboration with the  
          National Marine Fisheries Service and the Ocean Protection  
          Council, has held public and stakeholder meetings to explore how  
          to reduce entanglements.  Task force members have participated  
          in these meetings.  Short-term strategies to address  
          entanglement included training fishermen, establishing a  
          state-wide lost gear retrieval program, improving data  
          collection and enhancing reporting, potential gear  
          modifications, the development of best practices and more.

          Existing law regulating commercial fishing traps makes it  
          unlawful, except as specified, to willfully or recklessly  
          disturb, move, or damage any trap that belongs to another person  
          and that is marked with a buoy identification number.  Existing  
          law authorizes the department, in consultation with the crab  
          task force to develop regulations as necessary to provide for  
          retrieval of lost or abandoned commercial crab traps.

          PROPOSED LAW
          This bill would establish the "Whale Protection and Crab Gear  
          Retrieval Act" which, beyond the retrieval program, includes  
          additional provisions related to the Dungeness crab fishery that  
          are recommended by the task force.

          Specifically the bill would:
          1)Revise the department's existing requirement to develop  
            regulations for the retrieval of lost or abandoned commercial  
            Dungeness crab traps consistent with the following:
             a)   The establishment of a retrieval permit that allows the  
               permit holder to retrieve lost or abandoned commercial  
               Dungeness crab traps belonging to others during the closed  








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               season of the fishery.
             b)   The trap retrieval permit program shall be funded by a  
               fee levied on a Dungeness crab vessel permitholder for each  
               trap owned by the permitholder retrieved through the trap  
               retrieval program.  The fee shall be set to cover the  
               reasonable regulatory costs associated with the program and  
               to provide reasonable per trap compensation to a retrieval  
               permitholder, as specified. The retrieval permit holder  
               shall receive compensation on a per retrieved trap basis  
               from this fee.
             c)   The owner of the retrieved trap must pay the retrieval  
               trap fee prior to having the trap returned, and the  
               retrieved trap owner's Dungeness crab vessel permit shall  
               not be renewed until any fees due under the retrieval  
               permit program are paid.
             d)   The department shall determine how retrieved traps will  
               be stored and owners of the retrieved traps will be  
               notified.  In addition the department has the authority to  
               adopt and implement any other necessary requirements for  
               the trap retrieval permit program
             e)   The department shall provide the proposed program to the  
               task force for review, as specified, and the department  
               shall not implement the program until the task force has  
               had at least 60 days to review and recommend changes, if  
               any, to the program.  If the task force recommends it, the  
               director may implement the program earlier.
          2)Revise the "fair start" provisions to apply to a person using  
            the same Dungeness crab vessel to take crab in specified  
            waters before moving to different areas where the opening has  
            been delayed, as specified.
          3)Provide that the department shall waive the biennial fee for  
            trap tags for participants who are unable to fish due to  
            mandatory military service and the participant requests the  
            waiver at the same time the biennial crab trap limit permit is  
            renewed, as specified.  A recipient of a waiver may apply to  
            fish for crab during the 2nd year, but must pay the full  
            biennial cost of the tags.  There is no limit on the number of  
            times this waiver may be sought.
          4)Provide that a vessel may transit state waters carrying traps  
            without California tags if the traps have Oregon or Washington  
            tags, no crab are onboard and the traps are not deployed in  
            state waters.
          5)Make legislative findings related to the retrieval program.
          6)All provisions in this bill sunset as of April 1, 2019, as  








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            specified.

          ARGUMENTS IN SUPPORT
          According to the Trinidad Bay Fishermen's Marketing Association,  
          the SB 1287 crab trap retrieval program is needed because  
          "[t]his problem has existed since crab fishing began.  Some of  
          the gear left behind is stuck and abandoned.  Some of the gear  
          has been moved around by rough ocean, floating kelp, etc. and is  
          truly lost."

          They continue to describe their success participating in one of  
          the pilot gear recovery programs and state that "our goal now,  
          through this bill, is to establish a program with the help of  
          the [department] that accomplishes the same great results.  The  
          difference being it will be funded by mandatory fees charged to  
          the owners of the retrieved gear. [?] The fees will provide  
          financial incentive for boats to retrieve gear that has been  
          left after the end of the season.  More importantly, this will  
          motivate the owners to take care of much of their derelict gear  
          before the season ends to avoid the mandatory fees."

          "We have not seen a bad winter in a lot of years, but one will  
          come, and there will be thousands of derelict pots, instead of  
          hundreds, to retrieve.  Instead of having a big mess and no good  
          way to deal with it, we will have the solution to the problem in  
          place (SB 1287).  No matter what kind of winter we have, this  
          program will always be necessary."

          "We feel it is our duty to leave the ocean environment free from  
          derelict crab gear.  This will reduce entanglement hazards for  
          marine mammals, gear that is actively being fished, and other  
          mariners."

          ARGUMENTS IN OPPOSITION
          None received

          COMMENTS
           Solves existing problems  .  There is no legal way for a boat  
          carrying commercial Dungeness crab traps to use state waters  
          unless the crab traps have California tags.  In the existing  
          "fair start" provisions, all of the vessels of a single owner  
          are treated as one entity.  Therefore fishing by one vessel in a  
          location restricts where other vessels owned by the same person  
          may fish.  Similarly lost trap retrieval by someone other than  








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          the owner of the trap is currently illegal.  While lost gear  
          from other fisheries likely contributes to the whale  
          entanglement problem, lost commercial Dungeness crab traps have  
          been linked to entanglements.

           The camel's nose  ?  The Dungeness crab fishery is restricted.   
          Permits must be renewed every year (or, as possible,  
          transferred, if necessary, and renewed) to remain valid.  To the  
          best of Committee staff's knowledge, all commercial fishing  
          permits and licenses must be renewed every year and paid in full  
          for the permit to remain valid.  It is unknown how many members  
          of the commercial Dungeness crab fishery may benefit from the  
          fee waiver provision in this bill (although informal estimates  
          are a handful).  The military fee waiver provision in this bill  
          would set a precedent for commercial fisheries.

           Work-in-progress  .  The sunset date for the provisions in this  
          bill is before the official end of the 2018/2019 commercial  
          season.  There would be two possible seasons for the  
          department's lost gear retrieval program - after the 2016/2017  
          and 2017/2018 seasons.  The bill's language provides for the  
          time allotted for the task force's review of the program to be  
          abbreviated, but this may not be the driving factor in the time  
          needed for the development and implementation of the program.   
          Should the bill pass this Committee, the author may wish to  
          consider further how to ensure timely implementation of the lost  
          gear retrieval program.

           Delayed opening of the 2015/2016 commercial Dungeness crab  
          season  .  Due to high concentrations of domoic acid found in  
          crab, the commercial Dungeness crab fishery opening (among other  
          crab fisheries) was delayed from November 15, 2015 due to public  
          health concerns.  Domoic acid, a potent neurotoxin, was produced  
          by a large algal bloom.  Regular testing of crab continued and  
          the health advisories for Dungeness crab and other crab species  
          were subsequently lifted for crab caught in much of the state's  
          coastal waters.  On March 26, 2016 the commercial Dungeness crab  
          fishery opened in coastal waters south of the Sonoma/Mendocino  
          County line.  In early February, Governor Brown requested  
          federal declarations of a fishery disaster and a commercial  
          fishery failure due to the domoic acid-forced closure in an  
          effort to obtain economic assistance.

           The state's current commercial Dungeness crab fishery  .  The crab  








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          trap limit program was implemented for the 2013/2014 season.   
          According to the department, as of October 2015 there were 561  
          Dungeness crab trap limit permits which allowed for a maximum of  
          174,125 traps in state waters.  Approximately 1,400 trap tags  
          were replaced during the 2014/2015 season and another 11,700  
          were replaced after it. Not all permit holders replaced tags and  
          those that did replaced as few as 1 tag to as many as 500.  The  
          tags replaced between seasons likely included tags for traps  
          that were being replaced.

           Related recent legislation
           SB 1363 (Monning, 2016) would require the formation of the Ocean  
          Acidification and Hypoxia Program, as specified (pending before  
          the Senate Natural Resources and Water Committee)

          AB 1470 (Alejo, 2016) would establish the Harmful Algal Bloom  
          task force, as specified (held in the Assembly Water, Parks and  
          Wildlife Committee)

          AB 2363 (Chesbro, c.546, Statutes of 2012) revised some of the  
          Dungeness crab fishery requirements and added the requirement  
          that the department develop regulations for a lost gear program.

          SUPPORT
          Blue Fisheries
          California Coastkeeper Alliance
          Californians Against Waste
          Cap'n Zach's Crabhouse Inc. - FV Miss Phyllis
          Center for Biological Diversity
          Crescent City Commercial Fishermen's Association
          Earthjustice
          FV Corregidor
          Golden Gate Fishermen's Association
          Golden Gate Salmon Association
          Half Moon Bay Groundfish Marketing Association/Half Moon Bay  
          Commercial Fisheries Trust
          Humboldt Area Saltwater Anglers, Inc.
          the Marine Mammal Center
          Morro Bay Commercial Fishermen's Association, Inc.
          Natural Resources Defense Council
          Lt. Governor Gavin Newsom
          Northcoast Environmental Center
          Oceana
          Ocean Conservancy








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          Pacific Coast Federation of Fishermen's Associations
          Sierra Club California
          Surfrider Foundation
          Trinidad Bay Fishermen's Marketing Association, Inc.

          OPPOSITION
          None Received
                                      -- END --