BILL ANALYSIS Ó
SB 1287
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Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
SB
1287 (McGuire) - As Amended June 20, 2016
SENATE VOTE: 39-0
SUBJECT: Commercial fishing: Dungeness crab
SUMMARY: Requires the Department of Fish and Wildlife (DFW) to
establish a crab trap retrieval program, and makes other changes
relative to Dungeness crab permits. Specifically, this bill:
1)States legislative findings and declarations regarding the
Dungeness crab task force and the benefits of establishing a
trap retrieval program to reduce risk of whale entanglements.
States that the act established by this bill shall be known as
the Whale Protection and Crab Gear Retrieval Act. States that
the program should be efficient and cost-effective and utilize
entities in addition to the DFW, including nongovernmental
organizations, to implement the program.
2)Requires the DFW to issue waivers to participants in the
Dungeness crab trap limit program from the biennial fee for
each trap tag if the participant is unable to fish due to
mandatory military service. Authorizes a participant who
receives a waiver to apply to the DFW to fish for Dungeness
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crab during the second year of the waiver of the participant
pays the full cost of the trap tags.
3)Authorizes a vessel to transit state waters with Dungeness
crab traps that are not tagged with California trap tags if
the traps contain a valid Oregon or Washington state trap tag,
no crab species are on board, and the traps are not deployed
in state waters.
4)Requires the DFW to establish a lost or abandoned crab gear
retrieval permit program. Requires that the program include a
retrieval permit that authorizes the holder to retrieve lost
or abandoned Dungeness crab traps belonging to another person
during the closed season for the fishery, and to receive
compensation for that retrieval on a per trap basis. Provides
that the compensation shall be paid from revenue generated
from fees paid by the owners of the lost crab traps.
5)Requires the DFW to charge a fee to Dungeness crab vessel
permitholders for each lost trap belonging to the permitholder
that is retrieved. Requires the DFW to set the fee at a
level sufficient to cover the reasonable regulatory costs of
the program and to provide reasonable compensation to the
persons who retrieve the lost traps on a per trap basis.
Provides that reasonable regulatory costs include but are not
limited to administrative costs, storage costs, and costs
associated with disposing unusable traps or traps whose owners
cannot be identified.
6)Prohibits a lost Dungeness crab trap that is retrieved from
being returned to the trap owner until the owner has paid the
fee. Prohibits the DFW from renewing a Dungeness crab vessel
permit until any fees owed for retrieved crab traps is paid.
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7)Authorizes the DFW to use entities, including nongovernmental
organizations, to help implement the program.
8)Authorizes the DFW to adopt additional requirements necessary
to implement the crab trap retrieval program. Requires the
DFW to submit the proposed crab trap retrieval program
developed to the Dungeness crab task force for review, and
prohibits the program from being implemented until the task
force has had 60 days or more to review the proposed program
and recommend any proposed changes. Authorizes the DFW to
implement the program earlier than 60 days after it is
submitted to the task force for review if recommended by the
task force.
9)Includes a sunset clause providing that the crab trap
retrieval program shall become inoperative on April 1, 2019
and as of January 1, 2020 is repealed, unless a later enacted
statute deletes or extends the sunset date.
10)Exempts emergency fishery closures due to human health risk
from high levels of toxic substances from the Administrative
Procedures Act, and clarifies that once the DFW receives the
notification from State Public Health Officer that the fishery
can be reopened the DFW shall do so in a manner that promotes
a fair and orderly fishery.
11)Makes other technical and conforming changes.
EXISTING LAW:
1)Requires the DFW, in consultation with the Dungeness crab task
force, to develop regulations as necessary to provide for
retrieval of lost or abandoned crab traps.
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2)Requires the DFW to establish a tiered Dungeness crab trap
limit program, based on Dungeness crab landings. Requires all
participants in the program to pay a biennial fee for each
trap tag issued to cover a pro rata share of the costs of the
program. Requires trap tags to be fastened to each crab trap
and main buoy. Requires all trap tags allocated to each
permit to be purchased by the permitholder or the permit is
void.
3)Establishes the Dungeness crab task force which is tasked with
reviewing Dungeness crab management measures and making
recommendations to Legislature's Joint Committee on Fisheries
and Aquaculture, the Fish and Game Commission, and the DFW.
4)Prohibits a person from taking or possessing Dungeness crab
for commercial purposes from a vessel in ocean waters off
California, Washington or Oregon for 30 days after the opening
of the Dungeness crab fishing season in that state, if the
opening of the season has been delayed in that state and the
same vessel was used to take crab prior to the opening of the
season in one of the other two states.
5)By regulation prohibits a Dungeness crab permitted vessel from
possessing a Dungeness crab trap without a buoy tag assigned
to that vessel, with specified exceptions. The exceptions
allow no more than six derelict Dungeness crab traps to be
retrieved per fishing trip. In addition, an unlimited number
may be retrieved from July 16 through October 31st, subject to
DFW waiver requirements.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
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1)Approximately $500,000 annually for staffing and equipment
costs. This cost may be significantly reduced by the use
third parties to administer the program, and may be in part or
entirely funded by fees assessed on Dungeness crab vessel
operators whose traps are retrieved under the program.
2)Unknown, but likely minimal, costs to issue waivers from the
biennial fee for each trap tag for participants who are unable
to fish due to mandatory military service.
COMMENTS: This bill requires the DFW to establish a crab gear
retrieval program that authorizes retrieval of lost or abandoned
crab traps during the closed season, and allows persons who
retrieve the traps to be compensated for that retrieval on a per
trap basis. This bill would also establish a fee to be paid by
the owner of the trap to cover the costs of the retrieval
program, and would prohibit the DFW from renewing a Dungeness
crab vessel permit until any fees owed by the permittee for
retrieved gear are paid. This bill also would allow Dungeness
crab fishermen who are unable to fish due to mandatory military
service to obtain a waiver of required crab tag fees.
1)Author's Statement: Every season, thousands of crab traps are
lost off the California coast. Currently, there is no
regulatory program with adequate incentives to retrieve lost
and abandoned Dungeness crab fishing gear. Lost and abandoned
fishing gear pose a navigational hazard to boats, and have
proved to be extremely dangerous to migratory whales that
traverse up and down the California coast and become entangled
in lost crab trap lines. According to the National Marine
Fisheries Service (NMFW) the number of whales entangled in
fishing gear along the West Coast increased from an average of
10 per year between 2000 and 2012, to a record high in 2015 of
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61 whales, including 57 off the coast of California alone.
Humpback whales were the main species impacted. In response,
the program this bill would establish is being advanced by the
State's Dungeness crab task force.
2)Background: The Dungeness crab task force was established by
the Legislature in 2008 to provide recommendations on
management of the crab fishery. The task force is composed of
representatives of the recreational and commercial crab
fisheries, crab processors, commercial passenger fishing
vessels, and several nonvoting members from nongovernmental
organizations and the DFW. In their most recent report, the
task force recommended establishment of a statewide
industry-funded lost fishing gear recovery program.
According to the author, this bill is based on a pilot project
that has been recovering fishing gear on a limited basis in a
few select ports. The program has gathered approximately
1,500 crab pots over the last two seasons. This bill would
expand the voluntary pilot project to create a statewide
industry-funded crab gear retrieval program to remove lost and
abandoned gear from the oceans making it safer for whales and
other marine life and fishermen. As recommended by the task
force, only owners of retrieved traps, identifiable by trap
and/or buoy tags, are responsible for fees. As an economic
incentive for compliance, this bill would prohibit renewing a
Dungeness crab vessel permit until retrieval fees have been
paid. While the gear retrieval program would be implemented
through new fees, the fees are supported by the crab fishing
industry and other recreational and commercial fishing
organizations which are promoting this bill.
Marine debris has been recognized as a significant problem for
marine life, as well as a navigation hazard. Organizations
working on marine mammal rescue efforts indicate that marine
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debris, specifically fishing gear, lines and nets, are a
significant cause of entanglements for the marine mammals they
treat. According to the NMFS, of the 61 whales entangled in
waters off Oregon, Washington and California in 2015, 22 were
confirmed to be entanglements in fishing gear, and 12 of those
22 were entanglements with fishing gear from the Dungeness
crab fishery.
In addition to the gear retrieval program, the task force's
January 2015 report recommended that tag fee waivers be
allowed for permitholders who are unable to fish due to
mandatory military service, and that the law be amended to
allow vessels with only Oregon or Washington tags to transit
California waters, provided no crab species are onboard and no
traps are deployed without a valid California buoy tag. These
recommended changes are also included in this bill.
The latest author's amendments also add a provision that would
allow the DFW to expedite fishery closures when necessary to
protect public health, such as the domoic acid health risk
that resulted in closure of the Dungeness crab fishery this
past year. The amendments exempt such emergency closures from
the Administrative Procedures Act and the requirement to first
adopt emergency regulations.
3)Prior and Related Legislation: SB 1690 (Wiggins), Chapter
727, Statutes of 2008 established the Dungeness crab task
force. The task force was continued in effect by SB 369
(Evans), Chapter 335, Statutes of 2011. SB 369 also
established a tiered Dungeness crab trap limit program.
AB 2363 (Chesbro), Chapter 546, Statutes of 2012, among other
things, authorized the DFW, in consultation with the Dungeness
crab task force, to develop regulations, as necessary, to
provide for the retrieval of lost or abandoned commercial crab
traps.
4)Support Arguments: Supporters of this bill note that lost
crab fishing gear presents problems for navigation, can
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disrupt fishing activities, specifically salmon trolling, and
adds to marine debris. Fishing industry groups in support
indicate that the fishing industry desires to take steps to
remedy these problems. This bill addresses this problem by
creating a permit system that would allow fishermen to pick up
gear left in the ocean after the close of the fishing season.
Fishermen whose gear is retrieved would be required to pay for
the costs of recovery. This bill put the onus for recovery on
the fishing fleet to ensure that this preventable source of
marine debris is managed. Other supporters note that whale
entanglements have become an increasing concern, and there is
broad consensus that immediate establishment of a statewide
gear retrieval program is part of the solution.
5)Opposition Arguments: None received.
6)Proposed Amendments: The exemption from the regulatory
requirements of the Administrative Procedures Act for
emergency fishery closures, where necessary for serious public
health risks, appears justified. However, one effect of the
exemption is to eliminate opportunity for public comment on
the action. While there may not always be time to hold a
public hearing before an emergency closure for public health
reasons, the committee may wish to consider an amendment
requiring that an opportunity for public comment and
discussion be provided by the DFW through the Fish and Game
Commission at the earliest opportunity after the closure
occurs. A suggested amendment is as follows:
Add a new Section 5523(b)(2) to read:
(2) Following the closure of any waters pursuant to this section
the Department shall notify the Commission and request that
the Commission schedule a public discussion of the closure at
its next scheduled full Commission meeting.
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REGISTERED SUPPORT / OPPOSITION:
Support
Pacific Coast Federation of Fishermen's Associations (sponsor)
Blue Fisheries
California Coastkeeper Alliance
Californians Against Waste
Cap'n Zach's Crabhouse
Center for Biological Diversity
County of Del Norte
Crescent City Fishermen's Association
Earthjustice
Golden Gate Fishermen's Association
Golden Gate Salmon Association
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Half Moon Bay Commercial Fisheries Trust
Half Moon Bay Groundfish Marketing Association
Humboldt Area Saltwater Anglers, Inc.
Marine Mammal Center, The
Monterey Bay Aquarium
Morro Bay Commercial Fishermen's Organization, Inc.
Natural Resources Defense Council
Northcoast Environmental Center
Ocean Conservancy
Oceana
Sierra Club California
Surfrider Foundation
Trinidad Bay Fishermen's Marketing Association, Inc.
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Opposition
None on file.
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096