HomeMy WebLinkAboutF&G Commission - Notice of Proposal for a 90 day Extension of Emergecy Action Commissioners STATE OF CALIFORNIA Valerie Termini,Executive Director
Eric Sklar,President Edmund G.Brown Jr.,Governor 1416 Ninth Street, Room 1320
Saint Helena Sacramento,CA 95814
Jacque Hostler-Carmesin,Vice President (916)653-4899
McKinleyville Fish and Game Commission www.fgaca.goULLCOTY
Anthony C.Williams,Member ADMINIS,ritATION
Huntington Beach
Russell E.Burns,Member AUG 2 3 2017
Napa
Peter S.Silva,Member
EI Cajon OROVILLF,CALIFORNIA
Wildlife Heritage and Conservation
Since 1870
August 18, 2017
NOTICE OF PROPOSAL FOR A 90 DAY EXTENSION OF EMERGENCY ACTION
Emergency Abalone Take Reduction Due to Harmful Environmental Conditions
Reference OAL File#2016-1216-01 E
Pursuant to the requirements of Government Code Section 11346.1(a)(1), the Fish and
Game Commission (Commission) is providing notice of proposed emergency action
with regard to the above-entitled emergency regulation.
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.
Any interested person may present statements, arguments or contentions, in writing,
submitted via U.S. mail or e-mail, relevant to the proposed emergency regulatory action.
Written comments submitted via U.S. mail or e-mail 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 "Abalone Take Reduction"
addressed to:
Mailing Address: Reference Attorney California Fish and Game Commission
Office of Administrative Law Attn: Sheri Tiemann
300 Capitol Mall, Suite 1250 1416 Ninth Street, Rm. 1320
Sacramento, CA 95814 Sacramento, CA 95814
E-mail Address: staff@oal.ca.goy fgcC�fgc.ca.gou
Fax No.: 916-323-6826
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.cagov
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 subsections (b) and (c) of Section 29.15,
Title 14, California Code of Regulations
Re: Re-adoption of Emergency Abalone Take Reduction Due to Harmful Environmental
Conditions
Date of Statement: July 24, 2017
I. Emergency Regulation in Effect to Date
The California Fish and Game Commission (Commission) submitted an
emergency rulemaking that became effective April 1, 2017, to address concerns
with the red abalone resource due to a combination of unprecedented
environmental and biological stressors. The emergency rulemaking reduced the
open season length by two months by closing April and November and reduced
the annual limit from 18 to 12 (except for Sonoma County, which remained at 9).
II. Request for Approval of Re-adoption of Emergency Regulations
Based on California Department of Wildlife (Department) creel surveys and in-
water reports and observations in 2017, early indications suggest conditions
continue to be very poor and are not likely to quickly improve. Body shrinkage
scores for red abalone (over 3,800 samples) assessed from nine sites throughout
the fishery in May and ,lune 2017 show 25 percent of the abalone are shrunken
and starving. Gonad condition data also indicates no reproduction will occur this
year, adding to the two previous years with similar conditions. Kelp resources
continue to be poor and the density of purple sea urchin competitors remains
high. The Department is requesting that the Commission re-adopt the emergency
regulations that are set to expire on September 29, 2017 to continue the
emergency regulations through the end of the 2017 season. The Department is
preparing a standard rulemaking for the Commission's consideration to make the
2017 emergency regulations, or more restrictive regulations, effective for the
2018 season.
Ill. Statement of Facts Constituting the Need for Emergency Regulatory Action
The recreational red abalone (Haliotis rufescens) fishery is one of California's
most successful and popular fisheries, and is economically important, particularly
to Sonoma and Mendocino counties where approximately 95 percent of the multi-
million dollar fishery takes place. Over 25,000 fishermen participate in the fishery
each year. Red abalone may be taken with a sport fishing license subject to
regulations prescribed by the Commission.
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Under existing statute (Fish and Game Code Section 5521) and regulation
(Section 29.15, Title 14, CCR), abalone may only be taken for recreational
purposes north of a line drawn due west magnetic from the center of the mouth
of San Francisco Bay, except in the closed Fort Ross area. The current
regulation also specifies the season, hours, daily and annual limits, special gear
provisions, measuring devices, abalone report card requirements, and minimum
size. Red abalone may only be collected by skin diving (without SCUBA) or rock
picking during low tides, so that a deep-water refuge population is maintained to
enhance productivity of the fishery.
In 2005, the Commission adopted the Abalone Recovery and Management Plan
(ARMP) pursuant to requirements in statute (Fish and Game Code
Section 5522), to provide a cohesive framework for recovering depleted abalone
populations in southern California, and for managing the northern California
fishery and future fisheries, including red abalone. The ARMP articulates a
framework for sustaining abalone populations based largely on densities, catch,
size, and reproductive success as triggers for adjusting total allowable catch
(TAC) and engaging other management measures. Using criteria described in
the ARMP, the TAC is adjusted when specific triggers are met, through various
management actions such as changes to daily bag limits, seasonal limits, and
season length.
In 2015, a combination of unprecedented environmental and biological stressors
began to take their toll on abalone populations, including warmer-than-normal
waters and decreasing food resources, leading to starvation conditions.
Throughout 2016 and spring of 2017, the Department conducted surveys, visual
assessments, and histological sampling of north coast abalone, and documented
citizen reports of unhealthy or moribund abalone within the fishery. The
Department has identified wide-sweeping changes in the density, occurrence,
size and health of red abalone and the kelp upon which it depends for food.
Specifically, the Department has found:
• Warm Water Conditions and Kelp and Algae Declines. Red abalone
are herbivores that live on rocky reefs in kelp forests, eating red and
brown algae. In 2014, the kelp forests in the abalone fishery region
declined by 93 percent due to extreme warm water conditions and an
unprecedented increase in herbivorous red and purple sea urchin
populations. Unlike abalone, sea urchin populations are generally resilient
to food shortages and can survive longer, such that even if water
conditions cool, grazing pressure from surviving sea urchins may still keep
kelp from wide-spread recovery. Warm water conditions persisted through
2015, impacting kelp recovery and abalone health. Recently there has
been some improvement in kelp growth, but current kelp canopies are still
very sparse compared to normal years.
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• Starvation Conditions. Red abalone are susceptible to starvation when
kelp and algal abundances decline. Kelp and other algal species are being
actively cleared from rocky bottom habitat that is dominated by purple sea
urchin, which is greater than sixty times more abundant now than prior to
2013. Urchin populations increased, in part, due to large-scale loss of
predatory sea star species in 2013 due to sea star wasting disease. Bull
kelp and other algal food sources for abalone have remained at extremely
low levels since 2014; the large number of purple urchins is likely keeping
kelp recovery confined to very limited areas.
Abalone have been observed stacked on top of each other in shallow
water, which could be attributed to either abalone moving from deeper
water to shallower water where algae is slightly more abundant, or
abalone trying`to graze Whatever algae is growing-on the shells of other
abalone; shells were observed to be unusually clean of algal growth.
Recent evidence indicates the starvation conditions have not yet abated;
additional impacts have been observed in 2017 and are expected to
continue through the 2018 season.
• Density Declines. In spite of the Commission's 2093 actions to reduce
take and recover densities, the actions were ineffective in preventing
densities from continuing to decline, from an average of 0.47 per square
meter (m2) in 2013 to 0.44 per m2 in 2016. The Department believes the
density decline is largely due to the environmental conditions described
herein.
• Deep Water Refuge. Deep-water refuge is believed to be a critical
component in maintaining a highly productive recreational fishery. Deep-
water abalone are generally safe from take and can be a source of both
adults to replace abalone removed from shallower waters and larvae to
enhance abalone reproduction rates. Surveys in the summer of 2016
showed dramatic reductions in abalone densities in deep water refuges
(greater than 28 foot depths). The average density of deep-water red
abalone populations over the past four years has declined, increasing the
risk that the fishery is not sustainable. It should be noted that abalone
movement from deep water into shallow water or from cryptic locations to
exposed shallow areas can give the impression that abalone populations
are stable or have increased if the absence of abalone in deeper waters is
not considered.
• Abalone Health, Reproduction, and Mortality. The abundance of warm
water, coupled with a lack of algae, has severely impacted the health and
reproductive development of abalone. Fishermen and the public have
reported weak, shrunken, and dying abalone, as well as unusually high
numbers of empty shells of all size classes throughout the 2016 season,
which has continued into the 2017 season. Department surveys revealed
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more than 25 percent of catch at nine survey sites had body mass that
was shrunken (meat smaller than the shell). Reductions in body mass lead
to reduced reproductive fitness; just a 20% reduction in body mass can
reduce reproduction by 60-90 percent. Red abalone require approximately
12 years to grow to minimum legal size, so that multi-year gaps in
reproduction will be observed in the fishery for years to come.
Furthermore, recent laboratory feeding studies of starved wild red abalone
indicate that reproductive capability may take more than one year to
recover to normal levels after algal conditions improve.
The weakened condition of abalone may also reduce their ability to
withstand normal storm waves during the winter, increasing mortality. This
fishery has suffered two years of poor reproduction (2015 and 2016) with
all indications that 2017 will add a third year. This situation'is likely to put
future sustainability of the fishery at risk. Lack of kelp and other algae
greatly reduces cover for red abalone, making them easier to locate by
fishermen.
Studies, Reports, or Documents Supporting Factual Emergency
The Department relied on the following document in proposing this emergency
rulemaking action;
(1) The Abalone Recovery and Management Plan
https://www.wildlife.ca.gov/Conservation/Marine/ARMP
Department staff has documented critical negative impacts to red abalone fishing
grounds:
(1) A dramatic decline in sea stars, important sea urchin predators, due to
sea star disease.
(2) A dramatic decline (93 percent) of the kelp canopy in Sonoma and
Mendocino counties in 2014.
(3) A dramatic increase (60 times) in the density of purple sea urchins in
2015, increasing competition with abalone for food.
(4) Warm seawater conditions in Sonoma and Mendocino counties in 2014
and 2015.
(5) A lack of kelp, which increases the efficiency of fishing efforts in shallow
habitats.
(6) A decline in deep-water abalone densities.
(7) Continued decline in overall average abalone densities in spite of
significant take reductions implemented in 2014.
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Department staff has documented critical negative impacts to red abalone health:
(1) Visual abalone body health scores for abalone taken in the fishery during
the spring of 2016 and 2017 show that more than 25 percent of abalone
were shrunken in body mass at sites in northern California.
(2) Body condition index declined at Van Damme State Park by 20 percent,
but no significant difference was observed at Fort Ross in summer of
2016 (60 abalone per site).
(3) Department staff and abalone fishermen have observed weak abalone
washed up on shore and easy to remove from the rocks as well as many
new shells of all size classes, indicaiing increased natural mortality.
Department staff has,documented critical.negative,impacts.to red abalone
reproduction:
(1) Gonad index declined significantly at Van Damme State Park and at Fort
Ross in the summer of 2016 and 2017 (60 abalone per site).
(2) Small numbers of larval abalone observed in plankton surveys in
Sonoma and Mendocino counties in 2015.
(3) Small numbers of newly settled abalone observed in coral I i ne-covered
rock samples from Sonoma and Mendocino counties in 2015.
(4) Few juvenile (< 21 millimeter) red abalone were observed in artificial
reefs in Van Damme State Park in 2015.
IV. 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) Non discretionary Costs/Savings to Local Agencies:
None.
(c) Programs Mandated on Local Agencies or School Districts:
None.
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M 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.
V. Re-adoption Criteria
1) Same or Substantially Equivalent
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 the same as the language of the original emergency regulation.
2) Substantial Progress
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 June 22, 2017 meeting, the Commission received an update on the status of
the red abalone resource and directed the Department to develop a standard
rulemaking for Commission consideration to make the 2017 emergency
regulations, or more restrictive regulations, effective for the 2018 season. The
standard rulemaking effort is scheduled for notice at the Commission's August
meeting, with discussion and adoption hearings scheduled for October and
December. The re-adoption of the emergency regulations is needed to allow the
Commission time to comply with Administrative Procedure Act provisions.
Vi. Authority and Reference
The Commission proposes this emergency action pursuant to the authority
vested by sections 200, 24 205, 24-0-, 220; 4Q 255, 260, 265, 275, 399, 5520,
5521 and 7149.8 of the Fish and Game Code and to implement, interpret, or
make more specific sections 200,-2Q2; 205, 22-G-, 275J520, 5521, 7145, and
7149.8 of said code.
IV. Section 399 Finding
Pursuant to Section 399 of the Fish and Game Code, the Commission finds that
the adoption of this regulation is necessary for the immediate conservation,
preservation, or protection of birds, mammals, reptiles, or fish (abalone).
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Informative Digest (Plain English Overview)
The California Fish and Game Commission (Commission) submitted an emergency
rulemaking that became effective April 1, 2017, to address concerns with the red
abalone resource due to a combination of unprecedented environmental and biological
stressors. The emergency rulemaking reduced the open season length by two months
by closing April and November and reduced the annual limit from 18 to 12 (except for
Sonoma County, which remained at 9).
Based on California Department of Fish and Wildlife (Department) creel surveys and in-
water reports and observations in 2017, early indications suggest conditions continue to
be very poor and are not likely to quickly improve. Body shrinkage scores for red
abalone (over 3,800 samples) assessed from nine sites throughout the fishery in May
and June 2017 show 25 percent of the abalone are shrunken and starving. Gonad
condition data also indicates no reproduction will occur this year, adding to the two
previous years with similar conditions. Kelp resources continue to be poor and the
density of purple sea urchin competitors remains high. The Department is requesting
that the Commission re-adopt the emergency regulations that are set to expire on
September 29, 2017 to continue the emergency regulations through the end of the 2017
season. The Department is preparing a standard rulemaking for the Commission's
consideration to make the 2017 emergency regulations, or more restrictive regulations,
effective for the 2018 season.
Proposed Regulatory Action:
The proposed emergency regulation will reduce the take of abalone within the entire
fishery to levels anticipated to be sustainable under current environmental conditions.
Acting under the guidance contained in the ARMP, the Department requests the
Commission take emergency action to reduce allowable take by amending abalone
subsections (b) and (c) of Section 29.15, Title 14, CCR, to reduce the red abalone
allowable annual take from 18 to 12 abalone, with the exception that the lower limit of
"not more than 9 abalone of the yearly trip limit may be taken south of the boundary
between Sonoma and Mendocino Counties" found in subsection 29.15(c) will continue
to apply, and to close April and November to fishing.
Benefits: The proposed emergency reduction within the abalone fishery will benefit the
environment by protecting the valuable abalone resource from excessive fishing
mortality, which will allow the resource the opportunity to rebuild and be sustainable for
the future.
Consistency and Compatibility with Existing State Regulations: The Legislature has
delegated authority to the Commission to promulgate sport fishing regulations (Fish and
Game Code, sections 200, 205, 265, 275 and 399). No other state agency has the
authority to promulgate such regulations. The Commission has conducted a search of
Title 14, CCR and determined that the proposed regulation is neither inconsistent nor
incompatible with existing State regulations, and that the proposed regulation is
consistent with other sport fishing regulations and marine protected area regulations in
Title 14, CCR
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Regulatory Language
§ 29.15. Title 14, CCR is amended to read:
§ 29.15. Abalone.
(b) Open Season and Hours:
(1) Open Season: Abalone may be taken only during the months of May, June, August,
September and October.
(2) Open Hours: Abalone may be taken only from 8:00 AM to one-half hour after sunset.
(c) Bag Limit and Yearly Trip Limit: Three red abalone, Naliotis rufescens, may be taken per
day. No more than three abalone may be possessed at any time. No other species of
abalone may be taken or possessed. Each person taking abalone shall stop detaching
abalone when the limit of three is reached. No person shall take more than12 abalone
during a calendar year. In the Open Area as defined in subsections 29.15(a) and
29.15(a)(1) above, not more than 9 abalone of the yearly trip limit may be taken south of the
boundary between Sonoma and Mendocino Counties.
[No changes to subsections (a) and(d) through (h)]
Note: Authority cited: Sections 200, 242—, 205, 24-A; 220, a4� 255, 260, 265, 275, 399,
5520, 5521 and 7149.8, Fish and Game Code.
Reference: Sections 200,-20 205, 224@� 275, 5520, 5521, 7145, and 7149.8, Fish and
Game Code.
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