HomeMy WebLinkAboutFish and Game notice - Crab fishery closureCommissioners
Eric Sklar, President
Saint Helena
Jacque Hostler-Carmesin, Vice President
McKinleyville
Anthony C. Williams, Member
Huntington Beach
Russell E. Burns, Member
Napa
Peter S. Silva, Member
Chula Vista
STATE of CALIFORNIA
Edmund G. Brown Jr., Governor
Fish and Game Commission
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Wildlife Heritage and Conservation
Since 1870
July 19, 2016
Valerie Termini, Executive Director
1416 Ninth Street, Room 1320
Sacramento, CA 95814
(916) 653-4899
www.fgc.ca.gov
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JUL 2 2 2n+5
NOTICE OF PROPOSED 90 -DAY EXTENSION OF EMERGENCY ACTION
Emergency Closure of Recreational Dungeness Crab and Rock Crab Fisheries Due to
Elevated Levels of Domoic Acid
Reference OAL File #2015-1105-01 E and OAL File #2016-0421-02EE
Pursuant to the requirements of Government Code subsections 11346.1(a)(2) and
11346.1(h), the Fish and Game Commission (Commission) is providing notice of
proposed extension of existing emergency regulations, establishing emergency closures
of recreational Dungeness crab and rock crab fisheries due to elevated levels of domoic
acid.
The objective of this re -adoption is to protect the public from consuming Dungeness
crab and rock crab caught in areas with persistently high levels of domoic acid that pose
a risk to public health as determined by the director of the Office of Environmental
Health Hazard Assessment in consultation with the director of the California Department
of Public Health.
The Commission initially adopted the emergency regulations on November 5, 2015, and
re -adopted them on April 25, 2016; the first 90 -day extension will expire on August 3,
2016. The Commission adopted the second 90 -day extension on July 19, 2016.
The adopted 90 -day extension of emergency action is substantially equivalent to
the emergency regulation adopted by the Commission on November 5, 2015.
SUBMISSION OF COMMENTS
Government Code Section 11346.1(a)(2) requires that, at least five working days prior
to submission of the proposed emergency action to the Office of Administrative Law
(OAL), the adopting agency provide a Notice of the Proposed Emergency Action to
every person who has filed a request for notice of regulatory action with the agency.
After submission of the proposed emergency to OAL, OAL shall allow interested
persons five calendar days to submit comments on the proposed emergency
regulations as set forth in Government Code Section 11349.6.
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Any interested person may present statements, arguments or contentions, in writing,
submitted via U.S. mail, e-mail or fax, relevant to the proposed emergency regulatory
action. Written comments submitted via U.S. mail, e-mail or fax must be received at
OAL within five days after the Commission submits the emergency regulations to OAL
for review.
Please reference submitted comments as regarding "Emergency Closure of Crab
Fisheries" addressed to:
Mailing Address: Reference Attorney California State
Office of Administrative Law Fish and Game Commission
300 Capitol Mall, Suite 1250 Attn: Sheri Tiemann
Sacramento, CA 95814 1416 Ninth Street, Room 1320
Sacramento, CA 95814
E-mail Address: staff(a)oal.ca.gov
Fax No.: 916-323-6826
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For the status of the Commission's submittal to OAL for review, and the end of the five-
day written submittal period, please consult OAL's website at http://www.oal.ca.gov
under the heading "Emergency Regulations."
CALIFORNIA FISH AND GAME COMMISSION
STATEMENT OF PROPOSED EMERGENCY REGULATORY ACTION
FOR RE -ADOPTION OF EMERGENCY REGULATIONS
Emergency Action to Re -adopt Amendments to Section 29.85,
Title 14, California Code of Regulations
Re: Emergency closure of recreational Dungeness and rock crab fisheries
due to elevated levels of domoic acid
Statement of Facts Constituting Need for Emergency Regulatory Action
The Fish and Game Commission (Commission) is re -adopting amendments to
Section 29.85, Title 14, California Code of Regulations (CCR) [Office of
Administrative Law (OAL) file numbers 2015-1105-01 E and 2016-0421-02EE].
The Commission submitted an emergency rulemaking that was approved by the
Office of Administrative Law (OAL) and filed with the Secretary of State on
November 5, 2015, after samples of Dungeness and rock crabs were found to
contain high domoic acid levels. The emergency rulemaking closed the
recreational rock crab fishery north of the Ventura/Santa Barbara county line and
delayed the opening of the recreational Dungeness crab fishery statewide.
In April 2016 the Commission re -adopted the substantially equivalent emergency
regulations, which were filed with OAL on April 21, after samples of Dungeness
and rock crabs in some areas were found to still contain high domoic acid levels.
The Office of Environmental Health Hazard Assessment (OEHHA), in
cooperation with the California Department of Fish and Wildlife (Department),
has continued to regularly monitor domoic acid levels in rock crab and
Dungeness crab along the California coast since the emergency regulations were
filed. Pursuant to the emergency regulations adopted in November 2015 and re-
adopted in April 2016, the following state waters have been reopened for
recreational fishing based on the recommendations of OEHHA in consultation
with the director of the California Department of Public Health (CDPH):
1. On December 31, 2015, the recreational Dungeness crab and rock crab
fisheries were reopened in state waters south of 35140' N. Latitude
(near Piedras Blancas Light Station).
2. On February 11, 2016, the recreational Dungeness crab fishery was
reopened in state waters south of 380 00' N. Latitude (near Point Reyes).
3. On March 18, 2016, the recreational Dungeness crab fishery was
reopened in state waters south of the Mendocino/Sonoma county line
(near Gualala).
4. On March 28, 2016, the recreational rock crab fishery was reopened in
the Channel Islands, with the exception of state waters between Santa
Cruz and Santa Rosa islands.
5. On April 22, 2016 state waters were reopened for the recreational rock
crab fishery south of Sand Hill Bluff in Santa Cruz County (36° 58.72' N.
Latitude) and the recreational Dungeness crab fishery was opened south
of the northern jetty of Humboldt Bay in Humboldt County (40° 46.15' N.
Latitude).
6. On May 2, 2016 the recreational Dungeness crab fishery was reopened
statewide except for one area within Humboldt County; the area north of
40046.15' N. Latitude (a line extending due west from the west end of the
north jetty at the entrance of Humboldt Bay) and south of 41' 17.60' N.
Latitude (a line extending due west from the mouth of Redwood Creek,
Humboldt County) remained closed.
7. On May 19, 2016, the recreational Dungeness crab fishery was
reopened statewide.
8. On June 3, 2016, state waters were reopened for the recreational rock
crab fishery around the Channel Islands between Santa Cruz and Santa
Rosa Islands.
9. On July 6, 2016, the recreational rock crab fishery was reopened in state
waters south of Pigeon Point in San Mateo County (370 11' N. Latitude).
Past history with such situations suggested that the emergency would resolve
itself within the original 180 days as domoic acid levels naturally subsided.
However, high domoic acid levels are persisting in some areas of the state as
indicated by ongoing sampling. Therefore, the Commission re -adopted the
emergency regulations for an additional period of 90 days following the first re -
adoption 90 -day effective time period, which ends on August 3. The second re -
adoption is necessary to continue the emergency closures in those ocean waters
of the state with persistently high levels of domoic acid.
Consuming crab from areas with persistently high levels of domoic acid poses a
significant risk to public health as determined by the Director of OEHHA, in
consultation with the Director of CDPH. Thus readopting the emergency closure
for an additional period of 90 days beyond the initial 180 -day period and the first
re -adoption 90 -day period is necessary for the preservation of public health and
safety.
Identification of Reports or Documents Supporting Factual Emergency
The Commission relied on the following documents in proposing this emergency
rulemaking action:
Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Sonke Mastrup, Executive Director, California Fish and Game
Commission, Recommendations on Opening Dungeness and Rock Crab
From Mainland Coasts of San Luis Obispo County and Counties to the
South, dated December 31, 2015.
Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Michael Yaun, Interim Executive Director, California Fish and Game
Commission, Recommendation Regarding Opening of Dungeness Crab
Fishery in State Waters South of 38 0 00' N Latitude, dated February 11,
2016.
Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Michael Yaun, Interim Executive Director, California Fish and Game
Commission, Recommendation on Opening of Dungeness Crab Fishery in
State Waters South of the Sonoma/Mendocino County Line, dated March
18, 2016.
Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Michael Yaun, Interim Executive Director, California Fish and Game
Commission, Recommendation on Opening Rock Crab Fishery near
Channel Islands, with the Exception of One Area, dated March 28, 2016.
Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Michael Yaun, Interim Executive Director, California Fish and Game
Commission, Recommendation on Opening of Dungeness Crab Fishery in
State Waters of Mendocino and Portions of Humboldt Counties, dated
April 22, 2016.
• Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Michael Yaun, Interim Executive Director, California Fish and Game
Commission, Recommendation on opening of Dungeness Crab Fishery in
State Waters Between the California/Oregon Border and 410 17.60'N
Latitude, dated May 2, 2016
Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Michael Yaun, Interim Executive Director, California Fish and Game
Commission, Recommendation on Opening of the Last Remaining Area
Closed to Dungeness Crab Fishing, dated May 19. 2016
Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Valerie Termini, Executive Director, California Fish and Game
Commission, Recommendation on Opening of Rock Crab Fishery Near
Channel Islands, dated June 3, 2016
• Office of Environmental Health Hazard Assessment, Memorandum to
Charlton H. Bonham, Director, California Department of Fish and Wildlife,
and Valerie Termini, Executive Director, California Fish and Game
Commission, Recommendation of Opening of Rock Crab Fishery in
Portions of San Mateo County, dated July 6, 2016
II. Regulatory Proposal
In response to the high domoic acid levels persisting in some areas of state
ocean waters as indicated by continued sampling, the Commission re -adopted
the emergency closure for an additional period of 90 days beyond the initial 180 -
day period and first re -adoption 90 -day period as it is necessary for the
preservation of the public health and safety.
Emergency recreational fishing closures would remain in effect for rock crabs
caught in state waters north of 37° 11' N. Latitude at Pigeon Point in San Mateo
County.
Closure of the recreational fishery shall remain in effect until the director of
OEHHA, in consultation with the director of CDPH, determines that domoic acid
levels in rock crab no longer pose a significant risk to public health and no longer
recommends the fishery be closed.
The Department shall maintain a list of closed ocean waters of the state and
update that list on Wednesday of each week by 1:00 pm. It shall be the
responsibility of any person taking rock crab to call the Department's hotline or
visit the Department's website to obtain the current status of any ocean water.
III. Impact of Regulatory Action
The potential for significant statewide adverse economic impacts that might result
from the proposed regulatory action has been assessed, and the following
determinations relative to the required statutory categories have been made:
(a) Costs or Savings to State Agencies or Costs/Savings in Federal Funding
to the State:
None.
(b) Nondiscretionary Costs/Savings to Local Agencies:
None.
(c) Programs Mandated on Local Agencies or School Districts:
None.
(d) Costs Imposed on Any Local Agency or School District that is Required to
be Reimbursed Under Part 7 (commencing with Section 17500) of
Division 4, Government Code:
None.
(e) Effect on Housing Costs:
None.
IV. Re -adoption Criteria
Pursuant to Government Code Section 11346.1(h), the text of a re -adopted
regulation must be the "same or substantially equivalent" to the text of the
original emergency regulation. The language for the re -adopted regulatory
amendment is substantially equivalent to the language of the original emergency
regulation.
In addition, Government Code Section 11346.1(h) specifies that the emergency
rulemaking agency must demonstrate that it is making "substantial progress and
has proceeded with due diligence" to comply with standard rulemaking
provisions. At its July 19, 2016 meeting, the Commission received an update on
testing and sampling levels and an overview of state ocean waters that have
been reopened as well as those that remain closed due to elevated levels of
domoic acid. Past history with such situations suggested that the emergency
would resolve itself within the original 180 days as domoic acid levels naturally
subsided. However, the Commission determined that an emergency situation still
exists and re -adopted the emergency closure for an additional period of 90 days
beyond the initial 180 -day period and first 90 -day extension, as it is necessary for
the preservation of public health and safety. Given this unique situation, a state
interagency task force that includes the Commission has been created to
proactively address harmful algal blooms that result in high levels of domoic acid
and is working to identify solutions for more quickly addressing public health and
safety. In addition, legislation has been introduced to grant authority for
immediately closing fisheries due to harmful algal blooms.
V. Authority and Reference
The Commission proposes this emergency action pursuant to the authority
vested by sections 200, 202, 205, 220, and 240 of the Fish and Game Code and
to implement, interpret, or make specific sections 200, 202, 205, 206, 220, and
240 of said code.
VI. Section 240 Finding
Pursuant to Section 240 of the Fish and Game Code, the Commission finds that
the adoption of this regulation is necessary for the immediate protection of public
health and safety from elevated levels of domoic acid detected in samples of
Dungeness and rock crab in ocean waters of the state.
Informative Digest (Plain English Overview)
The Fish and Game Commission (Commission) is re -adopting amendments to
Section 29.85, Title 14, California Code of Regulations (CCR) [Office of Administrative
Law (OAL) file numbers 2015-1105-01 E and 2016-0421-02EE].
The Commission submitted an emergency rulemaking that was approved by the Office
of Administrative Law (OAL) on November 5, 2015, after samples of Dungeness and
rock crabs were found to contain high domoic acid levels. The emergency rulemaking
closed the recreational rock crab fishery north of the Ventura/Santa Barbara county line
and delayed the opening of the recreational Dungeness crab fishery statewide.
In April 2016 the Commission re -adopted the substantially equivalent emergency
regulations, which were filed with CAL on April 21, after samples of Dungeness and
rock crabs in some areas were found to still contain high domoic acid levels.
The Office of Environmental Health Hazard Assessment (OEHHA), in cooperation with
the California Department of Fish and Wildlife (Department), has continued to regularly
monitor domoic acid levels in rock crab and Dungeness crab along the California coast
since the emergency regulations were filed. Pursuant to the emergency regulations
adopted in November 2015 and re -adopted in April 2016, the following state waters
have been reopened for recreational fishing based on the recommendations of OEHHA
in consultation with the director of the California Department of Public Health (CDPH):
1. On December 31, 2015, the recreational Dungeness crab and rock crab
fisheries were reopened in state waters south of 350 40' N. Latitude (near
Piedras Blancas Light Station).
2. On February 11, 2016, the recreational Dungeness crab fishery was reopened
in state waters south of 380 00' N. Latitude (near Point Reyes).
3. On March 18, 2016, the recreational Dungeness crab fishery was reopened in
state waters south of the Mendocino/Sonoma county line (near Gualala).
4. On March 28, 2016, the recreational rock crab fishery was reopened in the
Channel Islands, with the exception of state waters between Santa Cruz and
Santa Rosa islands.
5. On April 22, 2016 state waters were reopened for the recreational rock crab
fishery south of Sand Hill Bluff in Santa Cruz County (360 58.72'N. Latitude)
and the recreational Dungeness crab fishery was opened south of the northern
jetty of Humboldt Bay in Humboldt County (40° 46.15' N. Latitude).
6. On May 2, 2016 the recreational Dungeness crab fishery was reopened
statewide except for one area within Humboldt County; the area north of
40046.15' N. Latitude (a line extending due west from the west end of the north
jetty at the entrance of Humboldt Bay) and south of 410 17.60' N. Latitude (a
line extending due west from the mouth of Redwood Creek, Humboldt County)
remained closed.
7. On May 19, 2016, the recreational Dungeness crab fishery was reopened
statewide.
8. On June 3, 2016, state waters were reopened for the recreational rock crab
fishery around the Channel Islands between Santa Cruz and Santa Rosa
Islands.
9. On July 6, 2016, the recreational rock crab fishery was reopened in state
waters south of Pigeon Point in San Mateo County (370 11' N. Latitude).
Past history with such situations suggested that the emergency would resolve itself
within the original 180 days as domoic acid levels naturally subsided. However, high
domoic acid levels are persisting in some areas of the state as indicated by ongoing
sampling. Therefore, the Commission re -adopted the emergency regulations for an
additional period of 90 days following the first re -adoption 90 -day effective time period,
which ends on August 3. The second re -adoption is necessary to continue the
emergency closures in those ocean waters of the state with persistently high levels of
domoic acid.
Consuming crab from areas with persistently high levels of domoic acid poses a
significant risk to public health as determined by the Director of OEHHA, in consultation
with the Director of CDPH. Thus readopting the emergency closure for an additional
period of 90 days beyond the initial 180 -day period and the first re -adoption 90 -day
period is necessary for the preservation of public health and safety.
Regulatory Action: Following the initial 180 -day effective time period, the Commission
re -adopted emergency regulations for an additional period of 90 days, which ends on
August 3. The second re -adoption is necessary to continue the emergency closures in
those state ocean waters with persistently high levels of domoic acid as it is necessary
for preserving public health and safety.
The Department shall maintain a list of closed ocean waters of the state and update that
list on Wednesday of each week by 1:00 pm. It shall be the responsibility of any person
taking Dungeness or rock crab to call the Department's hotline or visit to the
Department's website to obtain the current status of any ocean water.
Benefits: The regulation will protect public health and safety by prohibiting possession
of Dungeness and rock crab containing elevated levels of domoic acid.
The adopted regulations are neither inconsistent nor incompatible with existing state
regulations. The Legislature has delegated authority to the Commission to promulgate
sport fishing regulations (sections 200, 202, 205, 220, and 240, Fish and Game Code).
Regulatory Language
Section 29.85, Title 14, CCR, is amended to read:
29.85. Crab.
(a) Dungeness crabs (Cancer magister)
(1)Glesure: Closures:
(A), Dungeness crab may not be taken from or possessed if taken from San
Francisco Bay and San Pablo Bay, plus all their tidal bays, sloughs and
estuaries between the Golden Gate Bridge and Carquinez Bridge.
(B) Dungeness crab may not be taken from or possessed if taken from ocean
waters, including bays and estuaries, north of the Ventura/Santa Barbara
County line where the Director of the Office of Environmental Health Hazard
Assessment, in consultation with the Director of the California Department of
Public Health, has determined that Dungeness crab contain unhealthy domoic
acid levels and recommends closing the fishery until such time as the Director
of the Office of Environmental Health Hazard Assessment, in consultation
with the Director of the California Department of Public Health, determines
that domoic acid levels in Dungeness crab no longer pose a significant risk to
public health and no longer recommends the fishery be closed. Areas may be
opened on a county -by -county basis. The department shall maintain a list of
closed ocean waters of the state and update that list on Wednesday of each
week by 1:00 pm. It shall be the responsibility of any person prior to taking
Dungeness crab to call (831) 649-2883 or go to the department's website at
www.wiIdlife.ca.gov/Fishing/Ocean/Health-Advisories to obtain the current
status of any ocean water.
(2) Open season:
(A) Del Norte, Humboldt and Mendocino counties: From the fiFst Saturday
",mer opening date determined through subsection (a)(1)(B) through July
30.
(B) All other counties: From the fiFst Saturday iR Nevember opening date
determined through subsection (a)(1)(B) through June 30.
(3) Limit: Ten.
(4) Not more than 60 crab traps are authorized to be used to take Dungeness crab
from a vessel operating under authority of a Commercial Passenger Fishing
Vessel License issued pursuant to Fish and Game Code Section 7920.
(5) Traps and trap buoys by a commercial passenger fishing vessel to take
Dungeness crab under authority of this Section and Section 29.80 shall have the
commercial boat registration number of that vessel affixed to each trap and buoy.
(6) No vessel that takes Dungeness crabs under authority of this section, or Section
29.80, shall be used to take Dungeness crabs for commercial purposes.
(7) Minimum size: Five and three-quarter inches measured by the shortest distance
through the body from edge of shell to edge of shell directly in front of and
excluding the points (lateral spines).
(b) All crabs of the Cancer genus except Dungeness crabs, but including: yellow crabs,
rock crabs, red crabs and slender crabs:
(1) Rock crab closure:
(A) Rock crab may not be taken from or possessed if taken from ocean waters,
including bays and estuaries, n^"�f "e
in state waters north of Pigeon Point in San Mateo County (Latitude 371 11'
Public Health, has determined that rock crab contain unhealthy domoic acid
levels and recommends closing the fishery until such time as the Director of
the Office of Environmental Health Hazard Assessment, in consultation with
the Director of the California Department of Public Health, determines that
domoic acid levels in rock crab no longer pose a significant risk to public
health and no longer recommends the fishery be closed. Areas may be
opened on a county -by -county basis. The department shall maintain a list of
closed ocean waters of the state and update that list on Wednesday of each
week by 1:00 pm. It shall be the responsibility of any person prior to taking
rock crab to call (831) 649-2883 or go to the department's website at
www.wildlife.ca.gov/Fishing/Ocean/Health-Advisories to obtain the current
status of any ocean water.
04fQ Open season:
(A) Rock crab: The rock crab season will open on the date determined through
subsection (b)(1)(A) and will remain open until rOAL to insert end date of
emergency regulationl.
(B) All other species: All year.
�24QJ Limit: Thirty-five.
kaX4� Minimum size: Four inches measured by the shortest distance through the
body, from edge of shell to edge of shell at the widest part, except there is no
minimum size in Fish and Game districts 8 and 9.
(c) All crabs of the genus Cancer, including Dungeness crabs, yellow crabs, rock crabs,
red crabs and slender crabs, may be brought to the surface of the water for
measuring, but no undersize crabs may be placed in any type of receiver, kept on
the person or retained in any person's possession or under his direct control; all
crabs shall be measured immediately and any undersize crabs shall be released
immediately into the water.
(d) Sand crabs (Emerita analoga): Limit: Fifty.
Note: Authority cited: Sections 200, 202, 205 ^^0205, 220 and 240, Fish and Game
Code; Reference: Sections 200, 202, 205, X0206, 220 and 240, Fish and
Game Code