[Congressional Record (Bound Edition), Volume 160 (2014), Part 2]
[Extensions of Remarks]
[Pages 2593-2594]
[From the U.S. Government Publishing Office, www.gpo.gov]




 RECOGNIZING THE AGREEMENT BETWEEN NOAA AND THE STATE OF CALIFORNIA ON 
          IMPLEMENTATION OF THE SHARK CONSERVATION ACT OF 2010

                                 ______
                                 

                           HON. JARED HUFFMAN

                             of california

                    in the house of representatives

                      Wednesday, February 5, 2014

  Mr. HUFFMAN. Mr. Speaker, I'm pleased that NOAA has decided not to 
interfere with the progress California and other states have made in 
ending the cruel practice of shark finning. Federal preemption of state 
law should be extremely rare--the federal government should not stop 
states from raising the bar on environmental protection, and I'm glad 
NOAA has agreed to revise its position on our state's landmark shark 
fin law.
  I submit an exchange of letters between the National Oceanic and 
Atmospheric Administration and the California Department of Fish and 
Wildlife.

         U.S. Department of Commerce, National Oceanic and 
           Atmospheric Administration, National Marine Fisheries 
           Service,
                              Silver Spring, MD, February 3, 2014.
     Mr. Charlton Bonham,
     Director, California Department of Fish and Wildlife, 
         Sacramento, CA.
       Dear Mr. Bonham: Thank you for your February 3, 2014, 
     letter regarding your assessment of the relationship between 
     the Magnuson-Stevens Fishery Conservation and Management Act, 
     as amended by the Shark Finning Prohibition Act of 2000 and 
     the Shark Conservation Act of 2010, and the California Shark 
     Fin Prohibition and the impact of California's law on federal 
     shark harvesters.
       NOAA Fisheries West Coast Region confirms that revenue from 
     the sale of sharks harvested in federal waters off California 
     derives mostly from the sale of the meat of the shark, not 
     from the sale of fins sold after the shark is legally 
     harvested and landed with fins naturally attached. Further, 
     you confirm that all federal fishers who land sharks in 
     California, including those who operate in federal waters 
     pursuant to a federal license, are also required to hold 
     state licenses and are therefore exempt from the ban on 
     possession of shark fins. Based on the full information about 
     the California law set forth in your letter, and the current 
     facts specified there regarding the scale and nature of the 
     federal shark fishery in California, we agree with your 
     conclusion that California's Shark Fin Prohibition law will 
     have minimal impact on federally licensed and permitted shark 
     harvesters in California, and does not unlawfully burden 
     their ability to achieve the benefits from federal fisheries 
     provided under the Magnuson-Stevens Fishery Conservation and 
     Management Act, as amended. Accordingly, it is our position, 
     based on the information that you have provided, that 
     California's Shark Fin Prohibition law is not preempted by 
     the Magnuson-Stevens Act, as amended.
       We agree that this has been a very productive process. Our 
     consultations have addressed fully our initial concern, as 
     expressed in the amicus brief of the United States Chinatown 
     Neighborhood Association et al., v. Brown, et al., Ninth 
     Circuit Case No. 13-15188, that California's Shark Fin 
     Prohibition might conflict with or obstruct the Magnuson-
     Stevens Act, as amended. In light of our present conclusion 
     that California law does not conflict with or obstruct the 
     purposes, goals, or methods of the Magnuson-Stevens Act, we 
     do not intend to seek authorization from the Department of 
     Justice to further participate in the case of Chinatown 
     Neighborhood Association, et al. v. Brown, et al., No. CV 12 
     3759 WHO (N.D. Cal.). We request that you contact us if there 
     are significant changes to the facts described in your letter 
     as this could necessitate further consultation.
       We appreciate your willingness to work with us on this 
     important matter and we hope this letter addresses your 
     concerns.
           Sincerely,
                                                    Eileen Sobeck,
                            Assistant Administrator for Fisheries.
                                  ____
                                  
         State of California--Natural Resources Agency, Department 
           of Fish and Wildlife,
                                 Sacramento, CA, February 3, 2014.
     Eileen Sobeck,
     Assistant Administrator for Fisheries, National Oceanic and 
         Atmospheric Administration, Silver Spring, MD.
       Dear Ms. Sobeck: We write to memorialize a series of 
     conversations between our respective offices and legal 
     counsel beginning on September 6, 2013, regarding the 
     relationship between California's Shark Fin Prohibition, Cal. 
     Fish & Game Code Sec. Sec. 2021 & 2021.5, and the Magnuson-
     Stevens Fishery Conservation and Management Act, 16 U.S.C. 
     Sec. Sec. 1801-1884, as amended by the Shark Finning 
     Prohibition Act of 2000, Pub. L. No. 106-557, 114 Stat. 2772 
     (2000), and the Shark Conservation Act of 2010, Pub. L. No. 
     111-348, 124 Stat. 3668 (2010). We appreciate the opportunity 
     to consult with you and believe that this process has been 
     highly productive. This process was initiated after the 
     United States filed an amicus brief in Chinatown Neighborhood 
     Association et al., v. Brown, et. al., Ninth Circuit

[[Page 2594]]

     Case No. 13-15188, and in that filing the United States 
     observed that California's Shark Fin Prohibition may conflict 
     with or obstruct federal law. However, in light of our 
     discussions and the full information and analysis we have 
     provided regarding the scope and effect of California's law, 
     we now agree that California law and federal law are 
     consistent and that there is no basis for finding 
     California's Shark Fin Prohibition to be preempted by the 
     Magnuson-Stevens Act, as amended.
       The Magnuson-Stevens Act governs the management of federal 
     fisheries, including shark fisheries. As we have discussed, 
     the Shark Fin Prohibition and the Magnuson-Stevens Act, as 
     amended, share a goal of promoting conservation and ending 
     the practice of shark finning. To this end, the California 
     Shark Fin Prohibition proscribes the possession, sale, trade, 
     and distribution of detached shark fins in California. See 
     Cal. Fish & Game Code Sec. Sec. 2021(a)&(b). Of particular 
     significance here, and unlike federal law, the California 
     Shark Fin Prohibition does not regulate the act of finning or 
     the taking and landing of sharks within the Exclusive 
     Economic Zone (EEZ). Moreover, under California law, a 
     federally-licensed fisher may land a shark in California with 
     the fins attached, as required by the Shark Conservation Act 
     of 2010. See id. Sec. 2021(a) (defining ``shark fin'' as the 
     ``raw, dried, or otherwise processed detached fin, or the 
     raw, dried, or otherwise processed detached tail, of an 
     elasmobranch.'')
       With respect to your concern regarding the ability of 
     fishers to possess fins (from sharks caught in the EEZ), 
     pursuant to California Fish and Game Code sections 2021(d) 
     and 2021.5(a)(1), properly-licensed fishers are exempt from 
     the ban on possession. Because all fishers, including those 
     who operate in federal waters pursuant to a federal license, 
     are required to hold state licenses in order to land sharks 
     in California, see id. Sec. Sec. 7850, 7881, this exemption 
     applies equally to federal and state fishers.
       Finally, California's Shark Fin Prohibition does not 
     interfere with the management of federal fisheries. As you 
     are aware, and as set forth in our reply to your amicus 
     brief, we reject the notion that simply because a state ban 
     might have an effect on fishing within federal waters and 
     consequently on the attainment of ``optimum yield,'' that it 
     conflicts with and/or is preempted by the Magnuson-Stevens 
     Act. While we may continue to disagree on this point, as a 
     practical matter, the California Shark Fin Prohibition has no 
     meaningful effect on fishing behavior or ``optimum yield.'' 
     Relatively few sharks are landed in California. The 
     California-based drift gillnet fleet and the Hawaii-based 
     pelagic longline fleet account for the majority of shark 
     landings in California from federally-managed fisheries. Both 
     of these fleets target swordfish and thus fishing behavior in 
     these fleets is driven primarily by swordfish, and not by 
     sharks. The relative importance of swordfish and sharks is 
     apparent in both landings and revenue. For example, in 2012, 
     according to PacFIN data, shark landings in California (from 
     both federal and state waters) totaled 107.5 metric tons, and 
     represented $189,910 in revenue. By comparison, 402.5 metric 
     tons of swordfish were landed in California in 2012, with an 
     ex-vessel value of $2,092,050. With respect to the relatively 
     small number of sharks that are landed in California, state 
     law permits the sale of all of the parts of a shark caught in 
     federal waters and landed in California, excluding its 
     detached fin and tail. Accordingly, we do not expect an 
     appreciable impact on income to federally-licensed shark 
     harvesters in California as a result of California's law.
       For these reasons, we believe that California's Shark Fin 
     Prohibition is consistent with and does not conflict with the 
     Magnuson-Stevens Act, as amended by the Shark Finning 
     Prohibition Act of 2000, and the Shark Conservation Act of 
     2010.
       Please feel free to contact Thomas Gibson, General Counsel, 
     if you have further questions or concerns.
           Sincerely,
                                               Charlton H. Bonham,
     Director.

                          ____________________