HomeMy WebLinkAboutFish and Game Commission Notice - Razor Clam Fishery 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.fgc.ca,gov
Anthony C.Williams,Member
Huntington Beach
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Russell E.Burns,Member ADMINISTRATION
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Napa i.„a:
Peter S.Silva,Member qol
Chula Vista OCT ! 1
OROVILLE,CALIFORNIA
Wildlife Heritage and Conservation
Since 1870
October 11, 2016
NOTICE OF PROPOSED 90-DAY EXTENSION OF EMERGENCY ACTION
Emergency Closure of Recreational Razor Clam Fishery Due to Elevated Levels of
Domoic Acid
Reference OAL File #2016-0425-04E
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 closure
of the recreational razor clam fishery due to elevated levels of domoic acid.
The objective of this re-adoption is to protect the public from consuming razor clams
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 April 25, 2016; the
emergency regulation will expire on October 25, 2016. The Commission is expected to
adopt the proposed 90-day extension on October 19, 2016.
The proposed 90-day extension of emergency action is the same as the
emergency regulation adopted by the Commission April 25, 2016.
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 Razor Clam
Fishery" addressed to:
Mailing Address: Reference Attorney California State
Office of Administrative Law Fish and Game Commission
300 Capitol Mall, Suite 1250 Attn: Sherrie Fonbuena
Sacramento, CA 95814 1416 Ninth Street, Room 1320
Sacramento, CA 95814
E-mail Address: staff@oal.ca.gov fgc@fgc.ca.gov
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.ca.gov
under the heading "Emergency Regulations."
Sincerely,
Sherrie Fonbuena
Associate Governmental Program Analyst
Attachments:
• Statement of Proposed Emergency Regulatory Action for Re-adoption of Emergency
Regulation, including proposed regulatory language, October 2016
• Statement of Proposed Emergency Regulatory Action, including proposed regulatory
language, April 2016
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CALIFORNIA FISH AND GAME COMMISSION
STATEMENT OF PROPOSED EMERGENCY REGULATORY ACTION
FOR RE-ADOPTION OF EMERGENCY REGULATION
Emergency Action to-
Re-adopt Amendments to Section 29.45,
Title 14, California Code of Regulations
Re: Re-adoption of Emergency Closure of Razor Clam Fishery
Due to Elevated Levels of Domoic Acid
I. Statement of Facts Constituting the Need for Emergency Regulatory Action
The Fish and Game Commission (Commission) filed an emergency rulemaking
with the Office of Administrative Law (PAL) on April 25, 2016, after samples of
razor clams were found to contain high levels of domoic acid. The emergency
rulemaking closed the recreational razor clam fishery in Del Norte and Humboldt
counties. The emergency regulation was approved by OAL, filed with the
Secretary of State, and effective on April 26, 2016. The emergency regulation will
expire on October 25, 2016.
The Office of Environmental Health Hazard Assessment (OEHHA), in
cooperation with the Department of Fish and Wildlife (Department), has
continued to.monitor domoic acid levels in razor clams along the California coast
since the emergency regulation was filed. Past history with such situations
suggested that the emergency would resolve itself within the original 180-day
effective period of the emergency regulation as domoic acid levels naturally
subsided. However, OEHHA has not yet notified the Commission that domoic
acid levels in razor clams have returned to below the federal action level
(20 parts per million). Therefore, consuming razor clams from Del Norte and
Humboldt counties continues to pose a significant risk to public health as
determined by the Director of OEHHA, in consultation with the Director of CDPH.
Thus, re-adopting the emergency closure for a period of 90 days beyond the
initial 180-day period is necessary for the preservation of public health and
safety.
Il. Identification of Reports or Documents Supporting Factual Emergency
The Commission relied upon the following documents in proposing this
emergency rulemaking action:
• California Department of Public Health, "CDPH Reminds of Warning on
Razor Clams from Humboldt and Del Norte Counties," News Release,
April 20, 2016
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• California Office of Environmental Health Hazard Assessment, "Domoic
Acid Threat to Public Health from Razor Clams in Del Norte and Humboldt
Counties," Memo, April 20, 2016
• Razor Clam Update email from Gregg Langlois, California Department of
Public Health, dated July 29, 2016
• , Razor Clam Update email from Joe Christen, California Department of
Public Health, dated September 6, 2016
III, Regulatory Proposal
The proposed regulation would prohibit recreational take and possession of razor
clams in Del Norte and Humboldt counties. Closure of the fishery shall remain in
effect until the director of OEHHA, in consultation with the director of CDPH,
determines that domoic acid levels in razor clams 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 razor clams to call the Department's hotline at
or visit the Department's website at to obtain the current status of any ocean
water.
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) 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.
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(e) Effect on Housing Costs:
None.
V. 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 the same as 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 October 19-20, 2016, meeting, the Commission will receive an
update on testing and sampling 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, at its
October 19-20, 2016, meeting, the Commission is expected to determine that an
emergency situation still exists and re-adopt the emergency closure for a period
of 90 days beyond the initial 180-day period 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 to identify solutions for more quickly addressing public health and safety.
VI. 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.
VII. 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 that may result from elevated levels of domoic acid detected in samples of
razor clams.
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Informative Digest (Plain English_Overview)
The Fish and Game Commission (Commission) filed an emergency rulemaking with the
Office of Administrative Law (OAL) on April 25, 2016, after samples of razor clams were
found to contain high levels of domoic acid. The emergency rulemaking closed the
recreational razor clam fishery in Del Norte and Humboldt counties. The emergency
regulation was approved by OAL, filed with the Secretary of State, and effective on
April 26, 2016. The emergency regulation will expire on October 25, 2016.
The Office of Environmental Health Hazard Assessment (OEHHA), in cooperation with
the Department of Fish and Wildlife (Department), has continued to monitor domoic acid
levels in razor clams along the California coast since the emergency regulation was
filed. Past history with such situations suggested that the emergency would resolve
itself within the original 180-day effective period of the emergency regulation as domoic
acid levels naturally subsided. However, OEHHA has not yet notified the Commission
that domoic acid levels in razor clams have returned to below the federal action level.
Therefore, consuming razor clams from Del Norte and Humboldt counties continues to
pose a significant risk to public health as determined by the Director of OEHHA, in
consultation with the Director of CDPH. Thus, re-adopting the emergency closure for a
period of 90 days beyond the initial 180-day period is necessary for the preservation of
public health and safety.
Proposed Regulatory Action: The proposed regulation would prohibit recreational take
and possession of razor clams in Del Norte and Humboldt counties. Closure of the
fishery shall remain in effect until the director of OEHHA, in consultation with the
director of CDPH, determines that domoic acid levels in razor clams 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 razor clams to call the Department's hotline or visit to the Department's website
to obtain the current status of any ocean water.
Benefits: The proposed regulation will protect public health and safety by prohibiting the
take and possession of razor clams containing elevated levels of domoic acid.
Evaluation of Incompatibility with Existing Regulations. The proposed 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).
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Regulatory Language
Section 29.45, Title 14, CCR, is amended to read:
29.45. Razor Clams.
(a) Open season:
01 Notwithstanding subsections (a)(2), (a)(3)„and (a)(4) razor clams may not be
or possessed in Del Norte and Humboldt counties 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 razor clams contain
unhealthy domoic_acid levels and recommends closing the fishery. The open seasons
specified in subsections (a)(2), (a)(3) and (a)(4) only apply at 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 razor clams no_longerpose 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_a_ny person prior to taking razor clams 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.
04LQ Little River Beach in Humboldt County: Except as provided in subsection (a)(1),
Betweeebetween Mad River and Strawberry Creek open only during even-numbered
years; between Strawberry Creek and Moonstone Beach open only during odd-
numbered years.
(2)L3 In Del Norte County: Except as provided in subsection (a)(1), i�north of
Battery Point open only during odd-numbered years; south of Battery Point open only
during even-numbered years.
k3 f4j All other areas: Open all year, except as provided in subsection (a)(1).
(b) Limit: Twenty. The first twenty clams dug must be retained as the bag limit
regardless of size or broken condition,
Note: Authority cited: Sections 200, 202, 205, 210, 219 and 2219, 220, and 240, Fish
and Game Code. Reference: Sections 200-202, 203.1, 205.210 and 16.222 205-210
215222 and 240, Fish and Game Code,
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CALIFORNIA FISH AND GAME COMMISSION
STATEMENT OF PROPOSED EMERGENCY REGULATORY ACTION
Emergency Action to
Amend Section 29.45,
Title 14, California Code of Regulations
Re: Emergency Closure of Razor Clam Fishery Due to Elevated Levels of Domoic Acid
1. Statement of Facts Constituting the Need for Emergency Regulatory Action
Under existing law, razor clams may be taken for recreational purposes with a
sport fishing license subject to regulations prescribed by the Fish and Game
Commission (Commission).
The current regulation specifies the seasons, size limit, and bag limit for
recreational take of razor clams. The razor clam season for Humboldt County at
Little River Beach is open between Mad River and Strawberry Creek only during
even-numbered years and between Strawberry Creek and Moonstone Beach
only during odd-numbered years. The razor clam season for Del Norte County
north of Battery Point is open only during odd-numbered years and south of
Battery Point is open only during even-numbered years. All other areas are open
all year.
Recent test results indicate immediate action is needed to address an
emergency situation involving a severe threat to public health and safety from the
potential human consumption of razor clams with high levels of domoic acid
harvested along the coast of Del Norte and Humboldt counties (along Crescent
and Clam beaches). Domoic acid is a naturally occurring toxin that is related to a
"bloom" of a particular single-celled plant called Pseudo-nitzschia. The conditions
that support the growth of Pseudo-nitzschia are impossible to predict.
Crustaceans, fish and shellfish are capable of accumulating elevated levels of
domoic acid without apparent ill effects on the animals.
Domoic acid poisoning in humans may occur within minutes to hours after
consumption of affected seafood and can result in signs and symptoms ranging
from vomiting and diarrhea to permanent loss of short-term memory (Amnesic
Shellfish Poisoning), coma, or death.
The current federal action level for domoic acid in clams is 20 parts per million
(ppm). Data in razor clams collected this month from the coast of Del Norte and
Humboldt counties show that all but one of the samples (17 out 18) exceeded the
action level of 20 ppm, with one third of the samples above 100 ppm, and
therefore pose a significant risk to the public if they are consumed, as determined
by the Office of Environmental Health Hazard Assessment (OEHHA) in
consultation with the California Department of Public Health (CDPH). As a result,
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OEHHA has recommended the fishery be closed for Del Norte and Humboldt
counties.
This emergency situation clearly poses such an immediate, serious harm that
delaying action to allow for public comment and notice requirements, pursuant to
Section 11346.1 of the Government Code, would be inconsistent with the public
interest.
Identification of Reports or Documents Supporting Factual Emergency
• California Department of Public Health, "CDPH Reminds of Warning on
Razor Clams from Humboldt and Del Norte Counties," News Release,
April 20, 2016
• California Office of Environmental Health Hazard Assessment, "Domoic
Acid Threat to Public Health from Razor Clams in Del Norte and Humboldt
Counties," Memo, April 24, 2016.
Regulatory Proposal
The proposed regulation would prohibit recreational take and possession of razor
clams in Del Norte and Humboldt counties. Closure of the fishery shall remain in
effect until the director of OEHHA, in consultation with the director of CDPH,
determines that domoic acid levels in razor clams 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 razor clams to call the Department's hotline at
831) 649-2883 or visit the Department's website at
www.wildlife.ca.gov/Fishing/Ocean/Hea[th-Advisories to obtain the current status
of any ocean water.
IL 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.
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(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.
III. Authority and Reference
The Fish and Game 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.
IV. 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 that may result from elevated levels of domoic acid detected in samples of
razor clams.
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Informative Digest (Plain English Overview
The current regulation specifies the seasons, size limits, and bag limits for recreational
take of razor clams. The razor clam season for Humboldt County at Little River Beach is
open between Mad River and Strawberry Creek only during even-numbered years and
between Strawberry Creek and Moonstone Beach only during odd-numbered years.
The razor clam season for.Del Norte County north of Battery Point is open only during
odd-numbered years and south of Battery Point is open only during even-numbered
years. All other areas are open all year.
Proposed Re 'ulato Action: The proposed regulation would prohibit recreational take
and possession of razor clams in Del Norte and Humboldt counties. Closure of the
fisheries shall remain in effect until 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 razor clams 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 razor clams to call the Department's hotline at (831) 649-2883 or visit to the
Department's website at www.wildlife.ca.gov/Fishing/Ocean/HeaIth-Advisories to obtain
the current status of any ocean water.
Benefits: The proposed regulation will protect public health by prohibiting the take and
possession of razor clams containing elevated levels of domoic acid.
The proposed 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).
4
Regulatory Language
Section 29,45, Title 14, CCR, is amended to read:
29.45. Razor Clams.
(a) Open season:
(1) Notwithstanding subsections (a)(2), (a)(3) and (a)(4) razor clams may not be taken
or possessed in Del Norte and Humboldt counties 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 razor clams contain
unhealthy domoic acid levels and recommends closing the fishe . Theo en seasons
specified in subsections (a)(2), (a)(3) and_U(4only_apply_at 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 razor clams no longer pose a significant risk to public health and no longer
recommends the fishery be dosed. 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 razor clams to call (831) 649-2883 or
go to the department's website at www.wildlife.ca.g6v/Fishing/Ocean/Health-Advisories
to obtain the current status of any ocean water.-
0-)_C21 Little River Beach in Humboldt County: Except as provided in subsection (a)(1),
Beteenbetween Mad River and Strawberry Creek open only during even-numbered
years; between Strawberry Creek and Moonstone Beach open only during odd-
numbered years.
Q) (3) In Del Norte County: Except as provided in subsection (a)(1), north of
Battery Point open only during odd-numbered years; south of Battery Point open only
during even-numbered years.
{3) L41 All other areas: Open all year, except as provided in subsection (a)(1).
(b) Limit: Twenty. The first twenty clams dug must be retained as the bag limit
regardless of size or broken condition.
Note: Authority cited: Sections 200, 202, 205, 210, 219 and 229, 219, 220, and 240,
Fish and Game Code, Reference: Sections 200-202, 203.1, 205 210 and 215 222" 205-
210, 215-222 and 240, Fish and Game Code,
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