[Senate Report 114-260]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 477     
114th Congress      }                       {
                            SENATE                            Report
  2d Session        }                       {                   114-260
_______________________________________________________________________


                WEST COAST DUNGENESS CRAB MANAGEMENT ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 1143

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                  May 23, 2016.--Ordered to be printed
                  
                                _____
                   
                  U.S. GOVERNMENT PUBLISHING OFFICE
                          WASHINGTON : 2016
                          
  59-010                        
                  
                  
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred fourteenth congress
                             second session

                   JOHN THUNE, South Dakota, Chairman
 ROGER F. WICKER, Mississippi         BILL NELSON, Florida
 ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
 MARCO RUBIO, Florida                 CLAIRE McCASKILL, Missouri
 KELLY AYOTTE, New Hampshire          AMY KLOBUCHAR , Minnesota
 TED CRUZ, Texas                      RICHARD BLUMENTHAL, Connecticut
 DEB FISCHER, Nebraska                BRIAN SCHATZ, Hawaii
 JERRY MORAN, Kansas                  ED MARKEY, Massachusetts
 DAN SULLIVAN, Alaska                 CORY BOOKER, New Jersey
 RON JOHNSON, Wisconsin               TOM UDALL, New Mexico
 DEAN HELLER, Nevada                  JOE MANCHIN, West Virginia
 CORY GARDNER, Colorado               GARY PETERS, Michigan
 STEVE DAINES, Montana
                       Nick Rossi, Staff Director
                 Adrian Arnakis, Deputy Staff Director
                    Rebecca Seidel, General Counsel
                 Kim Lipsky, Democratic Staff Director
           Christopher Day, Democratic Deputy Staff Director
                 Clint Odom, Democratic General Counsel
                                                       
                                                       
                                                       
                                                       Calendar No. 477

114th Congress       }                      {               Report
                                 SENATE
 2d Session          }                      {                114-260
======================================================================

 
                WEST COAST DUNGENESS CRAB MANAGEMENT ACT

                                _______
                                

                  May 23, 2016.--Ordered to be printed

                                _______
                                

Mr. Thune, from the Committee on Commerce, Science, and Transportation, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1143]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 1143) to make the authority of 
States of Washington, Oregon, and California to manage 
Dungeness crab fishery permanent and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                          Purpose of the Bill

    The purpose of S. 1143, the West Coast Dungeness Crab 
Management Act, is to allow Washington, Oregon, and California 
to manage the Dungeness crab fishery permanently.

                          Background and Needs

    Marine fisheries resources in the United States are managed 
under State and Federal authorities. Fisheries in the exclusive 
economic zone of the United States (U.S. EEZ) are managed under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA).\1\ The U.S. EEZ is the largest in the 
world; it extends from coastal State boundaries to 200 nautical 
miles from shore, encompassing about 3.4 million square 
nautical miles of area. Within a few miles of shore, States are 
responsible for fisheries management, often in coordination 
with neighboring States and with the Federal Government. Most 
States' seaward boundaries extend three miles from shore; 
however, the seaward boundaries of Texas, Puerto Rico, and the 
Gulf coast of Florida extend nine nautical miles. In 2012, 
Louisiana claimed State jurisdiction out to over 10 nautical 
miles.\2\
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    \1\16 U.S.C. 1801 et seq.
    \2\Louisiana (State). 2011. Senate Bill 145 Act No 366. Available 
at: http://www.legis.la.gov/legis/ViewDocument.aspx?d=760938 (accessed 
June 17, 2015).
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Magnuson-Stevens Fishery Conservation and Management Act

    In 1976, Congress passed the Fishery Conservation and 
Management Act,\3\ which established a ``fishery conservation 
zone'' extending 200 miles from the shores of the United 
States, gave the United States exclusive authority to manage 
fishery resources within that zone, and excluded most foreign 
fishing fleets from those waters. In 1983, that Act was amended 
to reflect President Reagan's proclamation establishing an 
exclusive economic zone 200 nautical miles offshore of the 
United States\4\ consistent with the United Nations Convention 
on the Law of the Sea.\5\ That Act was retitled the Magnuson 
Fishery Conservation and Management Act in 1980\6\ to honor the 
leadership of Senator Warren Magnuson in that Act's original 
passage; in 1996 Senator Ted Stevens' contributions were 
recognized when his name was appended to the short title.\7\
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    \3\P.L. 94-265.
    \4\48 Fed. Reg. 10605.
    \5\Rolleri, J. ``Taking Stock: The Magnuson-Stevens Act Revisited; 
Background Materials on the MSA.'' Prepared for the 8th Marine Law 
Symposium, November 4-5, 2010, Roger Williams University School of Law, 
Bristol, RI.
    \6\P.L. 96-561.
    \7\P.L. 104-208.
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    The original version of that Act, in addition to 
establishing U.S. control over the fishery resources off our 
shores, also established eight Regional Fishery Management 
Councils (Councils): New England, Mid-Atlantic, South Atlantic, 
Caribbean, Gulf of Mexico, Pacific, North Pacific, and Western 
Pacific.\8\ The Councils include State, Federal, industry, and 
scientific representatives, and are primarily responsible for 
developing fishery management plans for fisheries in their 
respective regions.\9\ The Federal Government provides 
scientific and administrative support for the management of 
fisheries in Federal waters, primarily through the National 
Oceanic and Atmospheric Administration's (NOAA) National Marine 
Fisheries Service (NMFS). NMFS is subdivided into six regional 
offices and corresponding science centers: Alaska, West Coast, 
Greater Atlantic, Pacific Islands, Southeast, and 
Caribbean.\10\
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    \8\For each Council's area of responsibility, see http://
www.nmfs.noaa.gov/sfa/reg_svcs/councils.htm (accessed October 30, 
2013).
    \9\16 U.S.C. 1852.
    \10\National Marine Fisheries Service. 2013. Fisheries of the 
United States, 2012. U.S. Department of Commerce, Current Fishery 
Statistics No. 2012: p. 108. Available at: http://www.st.nmfs.noaa.gov/
commercial-fisheries/fus/fus12/index (accessed October 30, 2013).
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Dungeness Crab Tri-State Management

    The Dungeness crab (Metacarcinus magister) is a native 
species to the Pacific Ocean, with a habitat stretching from 
Alaska to Mexico.\11\ In 2014, across the West Coast, fishermen 
landed more than 53 million pounds of crab valued at $169.8 
million.\12\ Commercial and recreational harvest of the crab 
supports one of the West Coast's most valuable fisheries, with 
about 99 percent of the crab on the U.S. market coming from 
domestic sources. Landings of the crab in the fisheries off 
Washington, Oregon, and California have maintained a cyclical 
pattern for nearly 50 seasons, with harvests ranging from 8 
million to 54 million pounds yearly, peaking approximately 
every 10 years.\13\
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    \11\PSMFC. ``Tri-State Dungeness Crab (TSDC).'' Available at http:/
/www.psmfc.org/program/tri-state-dungeness-crab-tsdc (accessed 
September 23, 2015).
    \12\PSMFC. Dungeness Crab Report 2014. Available at: http://
www.psmfc.org/crab/2014-2015%20files/DUNGENESS%20CRAB%20REPORT2014.pdf 
(accessed September23, 2015).
    \13\NOAA Southwest Fisheries Science Center. ``Management of 
Dungeness Crab Fisheries.'' Available at: https://swfsc.noaa.gov/
publications/CR/1986/8667.PDF (accessed September 23, 2015).
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    In 1980, the States of Washington, Oregon, and California 
entered into a memorandum of understanding\14\ to take mutually 
supportive actions to cooperatively manage the fishery within 
their respective State waters (0 to 3 nautical miles from 
shore) as well as in the adjacent Federal waters (3 to 200 
nautical miles).\15\ Those three States manage the commercial 
and recreational fishery through the Dungeness crab tri-State 
process under the umbrella of the Pacific States Marine 
Fisheries Commission, an interstate compact agency that helps 
State resource agencies and the fishing industry sustainably 
manage Pacific Ocean resources in the five-State region of 
Washington, Oregon, California, Idaho, and Alaska. Each State 
is represented by three Commissioners. The Pacific States 
Marine Fisheries Commission establishes reporting requirements 
and seasons,\16\ as well as allocations.
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    \14\Fullerton, E.C., J. Donaldson, and G. Sandison. Memorandum of 
Understanding. Available at: https://www.scribd.com/doc/272105926/MOU-
Pacific-Coast-Dungeness-Crab-Fishery-1980 (accessed September 23, 
2015).
    \15\P.L. 94-625. Available at: http://www.gpo.gov/fdsys/pkg/PLAW-
105publ384/pdf/PLAW-105publ384.pdf (accessed September 23, 2015).
    \16\Washington Fish and Wildlife. ``Recreational Crab Fishing.'' 
Available at: http://wdfw.wa.gov/fishing/shellfish/crab/ (accessed 
September 23, 2015.
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    In 1996, Congress gave authority to Washington, Oregon, and 
California to manage the commercial Dungeness crab fishery off 
their coasts.\17\ This amendment included a sunset clause that 
expired one year after the enactment of the amendment. Since 
the initial 1-year pilot, the tri-State management authority 
has been extended 3 times, the most recent being a 10-year 
extension of the management authority in 2007.\18\ The current 
Federal authorization for the tri-State management authority 
expires on September 30, 2016. Under current law, the Secretary 
of Commerce reserves the right, at any time, to implement a 
Federal Fishery Management Plan for the fishery under the 
MSA.\19\
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    \17\P.L. 104-297 - Section 112(d). October 11, 1996.
    \18\P.L. 109-479 - Section 302(e). January 12, 2007.
    \19\P.L. 105-384 - Section 203(g). November 13, 1998.
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    The States conduct pre-season meat pick-out testing\20\ of 
the crab to determine season opening dates. According to the 
Pacific States Marine Fisheries Commission, each of the three 
States fund these assessments through revenue generated from 
the sale of Dungeness fishery permits and sales of crab 
retained during the testing. Additionally, the States have 
adopted strict size and sex requirements: only male crabs may 
be retained and must measure at least 6.25 inches at the 
shortest distance across the back of the shell.\21\ This size 
limit is utilized to protect sexually mature male crabs from 
harvest for a season or two.
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    \20\PSMFC. Pre-Season Testing Protocol for the Tri-State Coastal 
Dungeness Crab Commercial Fishery. Available at: http://www.psmfc.org/
crab/2013_FINAL_PreSeasonTestingProtocol.pdf (accessed September 23, 
2015).
    \21\Marine Stewardship Council - MSC Final Report with 
Certification Decision: Oregon Dungeness Crab Fishery, p.19, October 
27, 2010. Available at: https://www.msc.org/track-a-fishery/fisheries-
in-the-program/certified/pacific/oregon-dungeness-crab/assessment-
downloads-1/ODC_V4_Final-Report_27Oct2010.pdf (accessed September 23, 
2015).
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Domoic Acid

    The 2015 commercial Dungeness crab season was set to open 
on November 15th. On November 6, 2015, the California 
Department of Fish and Wildlife delayed the opening of the 
season due to dangerous levels of domoic acid in crab meat. 
Domoic acid is a toxin produced by the algae Pseudo-nitzschia 
and can be fatal at high levels. The reasons for the Pseudo-
nitzschia bloom are unclear, but may possibly be related to the 
current El Nino.\22\ This bill would continue the management 
system currently in place and would not impact the ability of 
State public health and fish and wildlife departments to react 
to cases like this.
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    \22\R. Parsons, ``Toxic algae delays California's Dungeness crab 
season,'' Los Angeles Times, November 5, 2015. Available at: http://
www.latimes.com/food/dailydish/la-dd-dungeness-crab-
season-delayed-toxic-algae-20151105-story.html (accessed November 9, 
2015).
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                         Summary of Provisions

    S. 1143, the West Coast Dungeness Crab Management Act, 
would allow Washington, Oregon, and California to manage the 
Dungeness crab fishery permanently.

                          Legislative History

    S. 1143 was introduced by Senator Cantwell on April 30, 
2015. Senators Wyden, Murray, Merkley, Feinstein, and Boxer are 
cosponsors. On November 18, 2015, the Committee met in open 
Executive Session and, by a voice vote, ordered S. 1143 to be 
reported favorably. A companion bill, H.R. 2168, was passed by 
the House of Representatives on October 6, 2015, by 
Representatives Herrera Beutler, Larsen, Kilmer, and Schrader.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 1143--West Coast Dungeness Crab Management Act

    S. 1143 would authorize Washington, Oregon, and California 
to continue to manage commercial fishing for Dungeness crabs in 
federal waters adjacent to their states until the Pacific 
Fishery Management Council develops a formal fishery management 
plan for the area. Under current law, the states' authority to 
manage their Dungeness crab fisheries will expire on September 
30, 2016. After that date, the National Oceanic and Atmospheric 
Administration (NOAA) will manage the fishery.
    If the states' authority to manage the fishery expires, CBO 
estimates that NOAA will require appropriations totaling $1 
million a year beginning in 2017 to hire 10 to 15 new employees 
to carry out administrative activities related to managing the 
fishery. Under the bill, CBO expects that the three states 
would continue to manage their Dungeness crab fisheries largely 
at state expense. Therefore, we estimate that implementing the 
bill would reduce the need for discretionary appropriations 
(and associated spending) by $1 million a year over the 2017-
2020 period.
    Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting the legislation would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2026.
    S. 1143 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Any costs incurred by states to continue regulating their 
fisheries would be incurred voluntarily.
    On September 30, 2015, CBO transmitted a cost estimate for 
H.R. 2168, the West Coast Dungeness Crab Management Act, as 
ordered reported by the House Committee on Natural Resources on 
September 10, 2015. The two bills are similar, and CBO's 
estimated costs are the same for both bills.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                           Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       number of persons covered

    S. 1143 as reported does not create any new programs or 
impose any new regulatory requirements, and therefore will not 
subject any individuals or businesses to new regulations.

                            economic impact

    S. 1143 is not expected to have a negative impact on the 
Nation's economy and, in fact, would have a positive impact. 
Were the management of the West Coast Dungeness Crab fishery to 
revert to Federal control, the estimated cost would be 
approximately $1 million per year for NOAA to hire new 
administrative employees related to managing the fishery.

                                privacy

    The reported bill would have no impact on the personal 
privacy of individuals.

                               paperwork

    S. 1143 would not increase paperwork requirements for 
either the private or public sector.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short title.

    This section would designate the short title of this bill 
as the ``West Coast Dungeness Crab Management Act.''

Section 2. Dungeness crab fishery management.

    This section would allow Washington, Oregon, and California 
to manage the Dungeness crab fishery permanently.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, 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, new 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

 AN ACT TO APPROVE A GOVERNING INTERNATIONAL FISHERY AGREEMENT BETWEEN 
  THE UNITED STATES AND THE REPUBLIC OF POLAND, AND FOR OTHER PURPOSES


                  [Public Law 105-384; 112 Stat. 3451]

SEC. 203. AUTHORITY OF STATES OF WASHINGTON, OREGON, AND CALIFORNIA TO 
                    MANAGE DUNGENESS CRAB FISHERY.

                         [16 U.S.C. 1856 note]

  (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 except as provided in 
        United States v. Washington, D.C. No. CV-70-09213, 
        United States District Court for the Western District 
        of Washington; 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) [Omitted]
  (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.
  [(i) Sunset.--This section shall have no force or effect on 
and after September 30, 2016.]
  [(j)](i) Not later than December 31, 2001, and every 2 years 
thereafter, the Pacific State Marine Fisheries Commission shall 
submit to the Committee on Commerce, Science, and 
Transportation of the Senate and the Committee on Resources of 
the House of Representatives a report on the status and 
management of the Dungeness Crab fishery located off the coasts 
of the States of Washington, Oregon, and California, 
including--
          (1) stock status and trends throughout its range;
          (2) a description of applicable research and 
        scientific review processes used to determine stock 
        status and trends; and
          (3) measures implemented or planned that are designed 
        to prevent or end overfishing in the fishery.

                                  [all]