[House Report 105-674]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-674
_______________________________________________________________________


 
             DUNGENESS CRAB CONSERVATION AND MANAGEMENT ACT

_______________________________________________________________________


 August 4, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3498]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 3498) to amend the Magnuson-Stevens Fishery Conservation 
and Management Act to authorize the States of Washington, 
Oregon, and California to regulate the Dungeness crab fishery 
in the exclusive economic zone, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Dungeness Crab Conservation and 
Management Act''.

SEC. 2. AUTHORITY OF STATES OF WASHINGTON, OREGON, AND CALIFORNIA TO 
                    MANAGE DUNGENESS CRAB FISHERY.

  (a) In General.--Subject to the provisions of this section and 
notwithstanding section 306(a) of the Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. 1856(a)), each of the States 
of Washington, Oregon, and California may adopt and enforce State laws 
and regulations governing fishing and processing in the exclusive 
economic zone adjacent to that State in any Dungeness crab (Cancer 
magister) fishery for which there is no fishery management plan in 
effect under that Act.
  (b) Requirements for State Management.--Any law or regulation adopted 
by a State under this section for a Dungeness crab fishery--
          (1) except as provided in paragraph (2), shall apply equally 
        to vessels engaged in the fishery in the exclusive economic 
        zone and vessels engaged in the fishery in the waters of the 
        State, and without regard to the State that issued the permit 
        under which a vessel is operating;
          (2) shall not apply to any fishing by a vessel in exercise of 
        tribal treaty rights; and
          (3) shall include any provisions necessary to implement 
        tribal treaty rights pursuant to the decision in United States 
        v. Washington, D.C. No. CV-70-09213.
  (c) Limitation on Enforcement of State Limited Access Systems.--Any 
law of the State of Washington, Oregon, or California that establishes 
or implements a limited access system for a Dungeness crab fishery may 
not be enforced against a vessel that is otherwise legally fishing in 
the exclusive economic zone adjacent to that State and that is not 
registered under the laws of that State, except a law regulating 
landings.
  (d) State Permit or Treaty Right Required.--No vessel may harvest or 
process Dungeness crab in the exclusive economic zone adjacent to the 
State of Washington, Oregon, or California, except as authorized by a 
permit issued by any of those States or pursuant to any tribal treaty 
rights to Dungeness crab pursuant to the decision in United States v. 
Washington, D.C. No. CV-70-09213.
  (e) State Authority Otherwise Preserved.--Except as expressly 
provided in this section, nothing in this section reduces the authority 
of any State under the Magnuson-Stevens Fishery Conservation and 
Management Act (16 U.S.C. 1801 et seq.) to regulate fishing, fish 
processing, or landing of fish.
  (f) Termination of Authority.--The authority of the States of 
Washington, Oregon, and California under this section with respect to a 
Dungeness crab fishery shall expire on the effective date of a fishery 
management plan for the fishery under the Magnuson-Stevens Fishery 
Conservation and Management Act.
  (g) Repeal.--Section 112(d) of Public Law 104-297 (16 U.S.C. 1856 
note) is repealed.
  (h) Definitions.--The definitions set forth in section 3 of the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1802) shall apply to this section.

                          Purpose of the Bill

    The purpose of H.R. 3498 is to amend the Magnuson-Stevens 
Fishery Conservation and Management Act to authorize the States 
of Washington, Oregon and California to regulate the Dungeness 
crab fishery in the exclusive economic zone.

                  Background and Need for Legislation

    The Pacific Ocean fishery for Dungeness Crab (Cancer 
magister) is administered in the State waters of California, 
Oregon, and Washington and in the exclusive economic zone 
adjacent to those States. A related tribal fishery is conducted 
under court order (United States v. Washington, D.C. No. CV-70-
09213) in ocean areas designated by regulation as tribal 
``usual and accustomed'' (U&A) areas.
    Conservation and management regulations are implemented and 
enforced by the three States and the tribal governments. These 
regulations include limits on the size and sex of crab that can 
be legally harvested, season opening and closing dates, and--in 
the case of tribal fisheries--areas and periods of time when 
harvesting is limited to tribal fishermen. All three States 
have enacted laws which limit entry into the crab fishery and 
which prohibit non-permitted vessels from landing crab in the 
State. A Memorandum of Agreement is in effect among the three 
States which require cooperation in setting size, sex, and 
season limits.
    Because a portion of the fishery occurs in the exclusive 
economic zone, the States are limited in their ability to 
enforce regulations against vessels registered under the laws 
of other States. Agreements between the State of Washington and 
tribal governments which are designed to accommodate tribal 
treaty fisheries are also complicated by the State of 
Washington's lack of authority over Oregon and California 
vessels which could legally fish in those portions of the 
tribal U&A areas outside State waters.
    In recognition of this confusing management problem, the 
Congress enacted section 112(d) of Public Law 104-297 (16 
U.S.C. 1856 note) in 1996, which provided limited interim 
authority for the three States to enforce certain State 
regulations against all vessels operating in the exclusive 
economic zone and fishing for Dungeness crab. That interim 
authority is due to expire on October 1, 1999.
    Paragraph (6) of Section 112(d) expressed the sense of 
Congress that the Pacific Fishery Management Council should 
develop a fishery management plan under the Magnuson-Stevens 
Fishery Conservation and Management Act (MSFCMA) for various 
shellfish species--including especially Dungeness crab--that 
were not then managed under such a plan. It further required 
the Council to submit a report to Congress by December 1, 1997, 
describing progress on and impediments to developing a fishery 
management plan.
    The Pacific Fishery Management Council convened an ad hoc 
committee composed of representatives from the Council, the 
States, the harvesting sector, the processing sector, the 
National Marine Fisheries Service, and the treaty tribes to 
develop options to respond to this direction. The committee met 
in May 1997, and the Council considered the committee's report, 
along with extensive public testimony, at the Council meeting 
in June 1997. The Council voted to adopt two options for public 
review: development of a fishery management plan under the 
MSFCMA, with some degree of delegation to the States; and a 
request to Congress that the interim authority be made 
permanent. The Council accepted an offer from the Pacific 
States Marine Fisheries Commission to use the Commission's Tri-
State Dungeness Crab Committee as a forum for public hearings 
on these options.
    The Tri-State Committee met in August 1997, and unanimously 
agreed that the Council should request Congress to make the 
interim authority permanent, with two changes from existing 
law: clarification of the ban on vessels not permitted to 
harvest Dungeness crab; and extension of State authority over 
the Dungeness crab fishery to all laws and regulations, except 
those limiting entry to the fishery. In September 1997, the 
Council unanimously adopted a motion made by Mr. Jim Harp, the 
designated tribal representative on the Council, to accept the 
Tri-State Committee recommendation and forward it to Congress 
as its required report.
    H.R. 3498 would enact into law the recommendations of the 
Council, which follow extensive public review by two committees 
and substantial public testimony at two different Council 
meetings. The Dungeness crab fishery has been successfully 
managed by the three west cost States and the relevant tribal 
governments for many years. Although the crab population is 
cyclical, substantial harvests have been sustained for decades. 
While the substantial increase in the number of vessels and 
pots used in this fishery in recent years is cause for concern 
that the fishery is becoming increasingly overcapitalized, 
there is no evidence to demonstrate that management under State 
regulation has resulted in conservation problems for the ocean 
Dungeness crab fishery.
    To ensure continued conservation, accommodate tribal treaty 
rights, and provide the States some means of addressing the 
growing problem of overcapitalization, some regulatory 
authority is necessary in the exclusive economic zone. If H.R. 
3498 is not enacted, no authority will exist when the current 
interim authority expires, which could lead to a dramatic 
short-term increase in effort in this overcapitalized fishery. 
While the Pacific Fishery Management Council could develop a 
fishery management plan under the MSFCMA, such a step would 
impose a fiscal burden on the taxpayers, an unnecessary 
regulatory burden on harvesters and processors, and would 
detract from efforts to conserve and manage other species which 
are under the Council's jurisdiction. For example, the 
Subcommittee on Fisheries, Wildlife Conservation and Oceans 
conducted an oversight hearing on west coast groundfish on 
April 30, 1998, which demonstrated the lack of data and funding 
available to the Council to effectively manage and conserve 
that fishery. The Council is also considering fishery 
management plans for coastal pelagic and highly migratory 
species; thus a requirement to develop an additional fishery 
management plan would further stretch the Council's capability 
to implement these plans effectively.
    Section 302 of the MSFCMA requires regional fishery 
management councils to develop fishery management plans for 
fisheries that require conservation and management. In several 
cases, including fisheries in Alaska and on the east coast, 
Congress has explicitly recognized thatconservation and 
management under State authority makes more sense. H.R. 3498 follows 
this pattern in recognizing the special circumstances surrounding a 
unique fishery which has been successfully conserved and managed under 
State and tribal authority.

                            Committee Action

    H.R. 3498 was introduced on March 18, 1998, by Congressman 
George Miller (D-CA). The bill was referred to the Committee on 
Resources, and within the Committee to the Subcommittee on 
Fisheries Conservation, Wildlife, and Oceans. On May 7, 1998, 
the Subcommittee held a hearing on H.R. 3498, where testimony 
was heard from: Dr. David Evans, Deputy Assistant Director, 
National marine Fisheries Service; Mr. Phillip Anderson, 
Pacific Fishery Management Council; Mr. Randy Fisher, Executive 
Director, Pacific States Marine Fisheries Commission; Mr. Nick 
Furman, Executive Director, Oregon Dungeness Crab Commission; 
Mr. Larry Thevik, Washington Dungeness Crab Fishermen's 
Association and the Columbia River Crab Fishermen's 
Association; Mr. Pietro Parravano, President, Pacific Coast 
Federation of Fishermen's Associations; and Mr. Rod Moore, 
Executive Director, West Coast Seafood Processors Association. 
Every witness testified in strong support of H.R. 3498. On June 
4, 1998, the Subcommittee met to mark up H.R. 3498. An 
amendment in the nature of a substitute was offered by Mr. 
Miller of California, and adopted by voice vote. The amendment 
made the bill a free standing measure instead of an amendment 
to the MSFCMA. The bill was then ordered favorably reported to 
the Full Committee by voice vote. On July 22, 1998, the Full 
Resources Committee met to consider H.R. 3498. Chairman Young 
offered an amendment to extend State fisheries jurisdiction out 
to three marine leagues in the Gulf of Mexico for the States of 
Alabama, Louisiana, and Mississippi, effective July 1, 1999. 
The Young amendment was ruled non-germane. No further 
amendments were offered and the bill, as amended, was then 
ordered favorably reported to the House of Representatives by 
voice vote.

                      Section-By-Section Analysis

                         section 1. short title

    Section 1 provides the short title of H.R. 3498: the 
Dungeness Crab Conservation and Management Act.

section 2. authority of states of washington, oregon, and california to 
                     manage dungeness crab fishery

    Section 2 provides authority to the States of California, 
Oregon, and Washington to manage Dungeness crab fisheries 
throughout the exclusive economic zone adjacent to those 
States, subject to certain limitations.
    Subsection 2(b) specifies that regulations governing the 
Dungeness crab fishery which are issued by a State must apply 
equally to all vessels within State waters and the exclusive 
economic zone, and to all vessels fishing in waters adjacent to 
a State, regardless of a vessel's origin. Thus, for example, 
the State of Washington could not allow Washington-permitted 
vessels to carry a certain number of crab pots, but prohibit 
Oregon or California-permitted vessels from carrying the same 
number of crab pots.
    The Committee recognizes that differences in the biology 
and ecology of crabs, bottom topography, and other natural 
factors may require differential management measures in 
different times or areas. For example, a State may need to 
prohibit fishing in certain waters to protect molting crabs. 
While such actions are permissible for conservation reasons, 
they cannot discriminate among vessels permitted by Washington, 
Oregon, or California.
    Paragraphs 2(b) (2) and (3) make clear that the expanded 
State authority granted in this Act shall not apply to vessels 
exercising their legitimate tribal treaty rights. The term 
``tribal treaty rights'' means a treaty fishing right that has 
been finally approved by the courts under the process defined 
in section 19(g) of the final court order under United States 
v. Washington, and the approval is not subject to further 
appeal. Further, if specific regulatory actions are required to 
be taken in order to implement those tribal treaty rights, the 
relevant State has the obligation to do so.
    Subsection 2(c) limits State authority by prohibiting 
enforcement of a State limited access system in the exclusive 
economic zone against vessels that are otherwise legally 
fishing. As noted above, the States of California, Oregon, and 
Washington have all enacted limited entry laws that apply 
respectively to each State's vessels. Those laws, including 
restrictions on landing, will continue to apply. However, they 
may not be used to prevent legally permitted vessels from other 
States from fishing in the exclusive economic zone and landing 
crab in their own States.
    Subsection 2(d) specified that the only vessels which may 
legally fish for Dungeness crab in the exclusive economic zone 
adjacent to the States of California, Oregon, and Washington 
are vessels which are permitted for such fishing by any one of 
those States, or vessels exercising tribal treaty rights.
    Subsection 2(e) generally preserves State authority to 
conserve and manage fish and wildlife, subject to the 
provisions of this Act.
    Subsection 2(f) makes clear that the expanded authority 
granted to the States of California, Oregon, and Washington 
under this Act will terminate on the effective date of a 
federal fishery management plan for the Dungeness crab fishery 
under the MSFCMA. Any State laws or regulations which govern 
the activities of vessels in the exclusive economic zone, other 
than laws or regulations which apply to a State's own vessels, 
will no longer be in effect after that date, unless 
specifically provided for in the fishery management plan.
    Subsection 2(g) repeals the interim authority over 
Dungeness crab fishing which was granted to the States of 
California, Oregon, and Washington under Public Law 104-297. 
This Act supersedes that interim authority.
    Subsection 2(h) specifies that definitions for such terms 
as ``fish'' and ``fishing'' which are used in this Act are the 
same as used in the MSFCMA.

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(l)(3) of rule 
XI of the Rules of the House of Representatives, and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee on Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8, and Article IV, section 3 of the 
Constitution of the United States grant Congress the authority 
to enact H.R. 3498.

                        Cost of the Legislation

    Clause 7(a) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 3498. However, clause 7(d) of that Rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act of 1974.

                     Compliance With House Rule XI

    1. With respect to the requirement of clause 2(l)(3)(B) of 
rule XI of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, H.R. 
3498 does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures. In fact, the Congressional Budget 
Office estimates that enactment of H.R. 3498 would reduce 
federal spending over the 1999-2003 period by about $1 million, 
assuming appropriations are reduced by the amount of the 
estimated savings.
    2. With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 3498.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 
3498 from the Director of the Congressional Budget Office.

               Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 30, 1998.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3498, the 
Dungeness Crab Conservation and Management Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Gary Brown 
(for federal costs), Pepper Santalucia (for the state and local 
impact), and Lesley Frymier (for the private-sector impact).
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

H.R. 3498--Dungeness Crab Conservation and Management Act

    Summary: H.R. 3498 would renew the authority of the states 
of California, Oregon, and Washington to regulate the fishery 
for Dungeness crab in the exclusive economic zone adjacent to 
those states (3 miles to 200 miles offshore), subject to 
certain conditions. Under current law, the states' authority to 
regulate this fishery expires on October 1, 1999. The bill 
specifies that the states' authority would terminate if the 
federal government elects to implement a management plan for 
this resource.
    CBO estimates that implementing the bill would reduce 
federal spending over the 1999-2003 period by about $1 million, 
assuming appropriations are reduced by the amount of the 
estimated savings. Enacting the bill would not affect direct 
spending or receipts; therefore, pay-as-you-go producers would 
not apply. The bill contains no intergovernmental mandates as 
defined in the Unfunded Mandates Reform act (UMRA) and would 
impose no costs on state, local, or tribal governments.
    H.R. 3498 would reauthorize and clarify an existing mandate 
on owners of vessels that fish for Dungeness crab in the 
exclusive economic zone adjacent to the states of California, 
Oregon, and Washington. Based on information provided by the 
National Oceanic and Atmospheric Administration (NOAA), CBO 
estimates that the direct cost of extending and clarifying the 
existing mandate would fall well below the statutory threshold 
established in UMRA ($100 million in 1996, adjusted annually 
for inflation) in any of the first five years.
    Estimated cost to the Federal Government: Under current 
law, NOAA probably would develop and implement a plan for 
managing the Dungeness crab fishery after the states' authority 
expires. We estimate that NOAA would need about $300,000 in 
fiscal year 2000 to develop a plan and less than $150,000 each 
year thereafter to implement and enforce it. If H.R. 3498 is 
enacted, CBO expects that the states would regulate this 
fishery and that NOAA would not exercise its authority to 
manage the resource. This would eliminate the need for a 
federal management plan. Hence, CBO estimates that implementing 
this bill would reduce federal spending by about $1 million 
over the four-year period, assuming appropriations are reduced 
as a result of these savings.
    Pay-as-you-go considerations: None
    Estimated impact on State, local, and tribal governments: 
The bill contains no intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments. Any costs to states to 
regulate this fishery would be incurred voluntarily.
    Estimated impact on the private sector: Current law, which 
is set to expire on October 1, 1999, prohibits vessels from 
fishing for Dungeness crab in the exclusive economic zone 
adjacent to the states of California, Oregon, and Washington 
without an appropriate state permit or a federal court order. 
H.R. 3498 would make this prohibition permanent. Based on 
information provided by NOAA, CBO estimates that the direct 
cost, if any, of extending the existing mandate would fall well 
below the threshold established in UMRA.
    Current law does not specify that the state permit be 
issued only by California, Oregon, or Washington. H.R. 3498 
would clarify that a permit be issued by one of those states. 
Accordingly to NOAA, all vessels currently fishing for 
Dungeness crab in the area subject to the prohibition already 
hold permits issued by one of those states. Therefore, the 
clarification would impose no additional costs on owners of 
vessels operating in the fishery.
    Estimate prepared by: Federal costs: Gary Brown; impact on 
State, local, and tribal governments: Pepper Santalucia; impact 
on the private sector: Lesley Frymier.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    H.R. 3498 contains no unfunded mandates.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets existing law in 
which no change is proposed is shown in roman):

               SECTION 112 OF THE ACT OF OCTOBER 11, 1996

                          (Public Law 104-297)

SEC. 112. STATE JURISDICTION.

  (a) * * *

           *       *       *       *       *       *       *

  [(d) Interim Authority for Dungeness Crab.--(1) Subject to 
the provisions of this subsection and notwithstanding section 
306(a) of the Magnuson Fishery Conservation and Management Act 
(16 U.S.C. 1856(a)), the States of Washington, Oregon, and 
California may each enforce State laws and regulations 
governing fish harvesting and processing against any vessel 
operating in the exclusive economic zone off each respective 
State in a fishery for Dungeness crab (Cancer magister) for 
which there is no fishery management plan implemented under the 
Magnuson Fishery Conservation and Management Act (16 U.S.C. 
1801 et seq.).
          [(2) Any law or regulation promulgated under this 
        subsection shall apply equally to vessels operating in 
        the exclusive economic zone and adjacent State waters 
        and shall be limited to--
                  [(A) establishment of season opening and 
                closing dates, including presoak dates for crab 
                pots;
                  [(B) setting of minimum sizes and crab meat 
                recovery rates;
                  [(C) restrictions on the retention of crab of 
                a certain sex; and
                  [(D) closure of areas or pot limitations to 
                meet the harvest requirements arising under the 
                jurisdiction of United States v. Washington, 
                subproceeding 89-3.
          [(3) With respect to the States of Washington, 
        Oregon, and California--
                  [(A) any State law limiting entry to a 
                fishery subject to regulation under this 
                subsection may not be enforced against a vessel 
                that is operating in the exclusive economic 
                zone off that State and is not registered under 
                the law of that State, if the vessel is 
                otherwise legally fishing in the exclusive 
                economic zone, except that State laws 
                regulating landings may be enforced; and
                  [(B) no vessel may harvest or process fish 
                which is subject to regulation under this 
                subsection unless under an appropriate State 
                permit or pursuant to a Federal court order.
          [(4) The authority provided under this subsection to 
        regulate the Dungeness crab fishery shall terminate on 
        October 1, 1999, or when a fishery management plan is 
        implemented under the Magnuson Fishery Conservation and 
        Management Act (16 U.S.C. 1801 et seq.) for such 
        fishery, whichever date is earlier.
          [(5) Nothing in this subsection shall reduce the 
        authority of any State, as such authority existed on 
        July 1, 1996, to regulate fishing, fish processing, or 
        landing of fish.
          [(6)(A) It is the sense of Congress that the Pacific 
        Fishery Management Council, at the earliest practicable 
        date, should develop and submit to the Secretary 
        fishery management plans for shellfish fisheries 
        conducted in the geographic area of authority of the 
        Council, especially Dungeness crab, which are not 
        subject to a fishery management plan on the date of 
        enactment of this Act.
          [(B) Not later than December 1, 1997, the Pacific 
        Fishery Management Council shall provide a report to 
        the Committee on Commerce, Science, and Transportation 
        of the Senate and the Committee on Resources of the 
        House of Representatives describing the progress in 
        developing the fishery management plans referred to in 
        subparagraph (A) and any impediments to such progress.]

                                
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