Amended in Senate May 11, 2016

Amended in Senate March 29, 2016

Senate Bill No. 1114

Introduced by Senator Allen

begin insert

(Coauthors: Assembly Members Bloom and Mullin)

end insert

February 17, 2016

An act to amend Section 8569 of, to add Section 8570 to, to add Article 16.5 (commencing with Section 8584) to Chapter 2 of Part 3 of Division 6 of, and to amend, repeal, and add Sections 8561.5 and 8567 of, the Fish and Game Code, and to amend Section 35650 of the Public Resources Code, relating to commercial fishing.

LEGISLATIVE COUNSEL’S DIGEST

SB 1114, as amended, Allen. Commercial fishing: swordfish.

(1) Existing law prohibits a person from using or operating, or assisting in using or operating, a boat, aircraft, net, trap, line, or other appliance to take fish or amphibians for commercial purposes unless the person holds a commercial fishing license issued by the Department of Fish and Wildlife. Existing law prohibits the taking of shark and swordfish for commercial purposes with drift gill nets except under a valid drift gill net shark and swordfish permit issued to that person that has not been suspended or revoked and is issued to at least one person aboard the boat, except as provided. Existing law authorizes a permit to be transferred under certain circumstances. Existing law establishes an annual fee of $330 for a permit. Under existing law, a violation of these provisions is a crime.

This bill would prohibit the department from issuing any drift gill net begin delete permit after March 1, 2017. end delete begin insert permit. end insert The bill would require the department to revoke all latent drift gill net permits, as defined, begin insert within 12 months of a federal authorization to use deep set buoy gear or similar gear to take swordfish end insert and would require the department to revoke all drift gill net permits if the department has not been notified of any landings under any drift gill net permit during any 2 successive fishing seasons. The bill, beginning March begin delete 1, end delete begin insert 31, end insert 2017, would limit the circumstances under which a drift gill net permit can be transferred to a situation where the permittee permanently retires the permit by transferring the permit to an entity engaged in retiring permits or where a person exchanges the permit for a deep set buoy gear permit. The bill, beginning March begin delete 1, end delete begin insert 31, end insert 2017, would increase the fee for a drift gill net permit to $1,500 and would authorize the department to increase the fee to fully recover its costs in administering the drift gill net program.

This bill would authorize the department to adopt regulations establishing a deep set buoy gear fishery for swordfish. The bill would require the department, upon a federal authorization to use deep set buoy gear or similar gear to take swordfish, to issue initial permits to specified persons and would authorize the department to issue additional permits 5 years after the federal authorization to use this gear, subject to specified requirements. The bill would prohibit the use of deep set buoy gear to take swordfish for commercial purposes, except under these permits issued by the department. Because a violation of this provision would be a crime, this bill would impose a state-mandated local program. The bill would require the department to set an annual fee for the permit and a fee for transferring a permit. The bill would require the department to establish measures and incentives that are needed to prevent, reduce, and eliminate the incidence of derelict deep set buoy gear left at sea to the extent that these measures are not established pursuant to federal law.

(2) The California Ocean Protection Act establishes the Ocean Protection Council and requires the council, among other things, to coordinate activities of state agencies that are related to the protection and conservation of coastal waters and ocean ecosystems, and to establish policies to coordinate the collection and sharing of scientific data related to coastal and ocean resources among agencies. The act creates the California Ocean Protection Trust Fund in the State Treasury and authorizes moneys deposited in the fund, upon appropriation by the Legislature, to be expended by the council for projects and activities authorized by the council consistent with the purposes of the act.

This bill would authorize the council to expend funds for the innovation and adoption of sustainable commercial fishing methods for swordfish and to expend funds to develop marketing and business structures to support a high and stable price for swordfish landed under a deep set buoy gear permit.

(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) It is in the best interest of the people of the state, the
commercial fishing industry, and California’s marine resources
that fishermen use the most sustainable fishing gear available to
harvest seafood off the California coast.

(b) Large scale pelagic drift gill nets have been banned on the
high seas in many countries worldwide and are banned or are no
longer authorized in all other states because of the unavoidable
impacts to marine wildlife, including whales, dolphins, sharks,
pinnipeds, and sea turtles, including the California state marine
reptile, the pacific leatherback sea turtle. Many California species
affected by the drift gill net fishery are protected under state and
federal law or covered under international agreements, such as the
sperm whale, leatherback sea turtle, loggerhead sea turtle, begin delete Bigeye end delete
begin insert bigeye end insert thresher shark, and scalloped hammerhead shark.

(c) Impacts to California’s marine and coastal resources have
been a persistent concern with the use of drift gill nets. According
to data begin delete collect end delete begin insert collected end insert pursuant to the National Oceanic and
Atmospheric Administration’s observer program, California’s drift
gill net fishery kills or injures approximately seven times more
whales and dolphins than all other observed fisheries in California,
Oregon, Washington, and Alaska combined, and 13 times more
than any other single observed fishery on the West Coast.

(d) California should set the standard for sustainable swordfish
fishing globally and follow the lead of the other states in
implementing sustainable alternatives. California’s standards for
sustainability and low environmental impacts in commercial fishing
are critical for addressing impacts in foreign fisheries, since these
standards frame the scope of international efforts to push for
stronger international standards, both diplomatically and as a matter
of federal law. Continuing the use of destructive fishing gears in
California enables the use of similar gears in fisheries that import
into the United States and limits efforts to reduce impacts from
those imports.

(e) Deep set buoy gear has been deployed on the East Coast
where the gear has proven to be among the most selective and
sustainable gears used to catch swordfish. This gear should be used
to improve the fishing practices of the north Pacific swordfish
stock in California. Deep set buoy gear used under federal
exempted fishing permits is proving to be successful in California,
and the fishing fleet needs regulatory flexibility to continue to
innovate more sustainable and economic gear.

(f) Given the economic and environmental benefits to the people
of the state, California should prioritize financial support for the
deployment of innovative sustainable gear types. It is the intent of
the Legislature to direct new entrants into the swordfish fishery
toward the use of lower impact fishing gears for a modern fishery,
while allowing current participants in the aging drift gill net fishery
to continue those practices until retirement.

SEC. 2.  

Section 8561.5 of the Fish and Game Code is amended
to read:

8561.5.  

(a) Notwithstanding Section 8102, a permit issued
pursuant to this article may be transferred by the permittee only if
one of the following conditions is met:

(1) The permittee has held the permit for three or more years.

(2) The permittee is permanently injured or suffers a serious
illness that will result in a hardship, as determined in a written
finding by the director, to the permittee or his or her family if the
permit may not otherwise be transferred or upon dissolution of a
marriage where the permit is held to be community property.

(3) The permittee has died and his or her surviving spouse, heirs,
or estate seeks to transfer the permit within six months of the death
of the permittee or, with the written approval of the director, within
the length of time that it may reasonably take to effect the transfer.

(b) A permit may be transferred only to a person who holds a
valid general gill net permit issued to that person pursuant to
Section 8681 that has not been suspended or revoked.

(c) The transfer of a permit shall only become effective upon
notice from the department. An application for transfer shall be
submitted to the department with such reasonable proof as the
department may require to establish the qualification of the person
the permit is to be transferred to, the payment to the department
of a transfer fee of one thousand five hundred dollars ($1,500),
and a written disclosure, filed under penalty of perjury, of the terms
of the transfer.

(d) Any restrictions on participation that were required in a
permit transferred pursuant to Section 8102 before January 1, 1990,
are of no further force or effect.

(e) This section shall become inoperative on March 31, 2017,
and, as of January 1, 2018, is repealed, unless a later enacted
statute, that becomes operative on or before January 1, 2018,
deletes or extends the dates on which it becomes inoperative and
is repealed.

SEC. 3.  

Section 8561.5 is added to the Fish and Game Code,
to read:

8561.5.  

(a) Notwithstanding Section 8102 or any other law, a
permit issued pursuant to this article may be transferred by the
permittee only in one of the following circumstances:

(1) The permittee permanently retires the permit by transferring
the permit to an entity engaged in retiring permits.

(2) The permittee exchanges the permit pursuant to Section
8584.2 for a deep set buoy gear permit.

(b) This section shall become operative on March 31, 2017.

SEC. 4.  

Section 8567 of the Fish and Game Code is amended
to read:

8567.  

(a) The fee for a drift gill net shark and swordfish permit
shall be three hundred thirty dollars ($330).

(b) This section shall become inoperative on March 31, 2017,
and, as of January 1, 2018, is repealed, unless a later enacted
statute, that becomes operative on or before January 1, 2018,
deletes or extends the dates on which it becomes inoperative and
is repealed.

SEC. 5.  

Section 8567 is added to the Fish and Game Code, to
read:

8567.  

(a) The fee for a drift gill net shark and swordfish permit
shall be one thousand five hundred dollars ($1,500), but the
department may increase the amount of the fee to fully recover its
costs in administering this article.

(b) This section shall become operative on March 31, 2017.

SEC. 6.  

Section 8569 of the Fish and Game Code is amended
to read:

8569.  

begin delete Except for a permit revoked pursuant to Section 8570,
the end delete begin insert The end insert commission may establish conditions for the issuance of
a permit if the person’s drift gill net shark and swordfish permit
was revoked during a preceding begin delete season or end delete begin insert season, was revoked
pursuant to subdivision (a) of Section 8570, or end insert if the person
possessed a valid permit during the preceding season but did not
apply for renewal of his or her permit on or before April 30. The
applicant for a permit under this section may appeal to the director
for the issuance of the permit under those conditions.

SEC. 7.  

Section 8570 is added to the Fish and Game Code, to
read:

8570.  

(a)  begin delete The end delete begin insert Within 12 months of the authorization for the
use of deep set buoy gear or similar gear to take swordfish
pursuant to federal law, the end insert department shall revoke all latent drift
gill net permits.

(b) Notwithstanding Sections 8568 and 8568.5, or any other
law, the department shall not issue any drift gill net shark and
swordfish begin delete permit after March 31, 2017. The end delete begin insert permit. Except as
provided in Section 8569, the end insert department shall not transfer or
reissue any permit that has been exchanged pursuant to Article
16.5 (commencing with Section 8584), revoked, or surrendered.

(c) The department shall revoke all drift gill net shark and
swordfish permits if the department has not been notified of any
landings under any drift gill net shark and swordfish permit during
any two successive fishing seasons.

(d) For purposes of this section, “latent drift gill net permit”
means a valid drift gill net shark and swordfish permit issued
pursuant to this article under which no swordfish or thresher shark
was landed in at least three years between 2010 and 2015,
inclusive.

SEC. 8.  

Article 16.5 (commencing with Section 8584) is added
to Chapter 2 of Part 3 of Division 6 of the Fish and Game Code,
to read:

 

Article 16.5.  Deep Set Buoy Gear Swordfish Fishery

 

8584.  

For purposes of this article:

(a) “Actively fished drift gill net permit” means a valid drift gill
net shark and swordfish permit issued pursuant to Article 16
(commencing with Section 8561) under which swordfish or
thresher shark have been landed in at least three years between
2010 and 2015, inclusive.

(b) “Actively fished drift gill net permitholder” means the named
permittee on an actively fished drift gill net permit.

(c) “Latent drift gill net permit” means a valid drift gill net shark
and swordfish permit issued pursuant to Article 16 (commencing
with Section 8561) that does not fall within the definition of an
actively fished drift gill net permit.

(d) “Negligible risk to protected marine wildlife” means no
more than a 20-percent probability, as estimated by appropriate
statistical methodologies, when available, or a comparable standard,
of exceeding take levels established by relevant state and federal
standards, including the lowest of any of the following where
available and applicable:

(1) The zero rate mortality goal or 10 percent of potential
biological removal level, as defined under the federal Marine
Mammal Protection Act begin insert of 1972 end insert (16 U.S.C. Sec. 1361 et seq.) and
implementing regulations.

(2) Incidental take limits established under the federal
Endangered Species Act begin insert of 1972 end insert (16 U.S.C. Sec. 1531 et seq.).

(3) Any other applicable state or federal take limit.

(4) Any take level estimated under the best available scientific
and commercial data to delay the time to recovery by more than
10 percent.

8584.1.  

Notwithstanding Section 8394, the department may
adopt regulations establishing a deep set buoy gear fishery for
swordfish consistent with the requirements of this article and
federal law.

8584.2.  

Upon authorization of the use of deep set buoy gear
or similar gear to take swordfish pursuant to federal law, the
department shall issue permits for the deep set buoy gear fishery
according to the following criteria:

(a) The department shall issue one deep set buoy gear permit
to each of the following:

(1) An actively fished drift gill net permitholder.

(2) A person who has fished with deep set buoy gear under a
federal exempted fishing permit since January 1, 2010.

(3) A person who holds a permit begin insert issued end insert pursuant to Section
8394 who has landed swordfish under that permit in at least two
years between 2010 and 2015, inclusive.

(b) The department may issue two additional deep set buoy gear
permits to each actively fished drift gill net permitholder and each
person who holds a drift gill net permit but who fished with deep
set buoy gear under a federal exempted fishing permit since January
1, 2010, if the person surrenders the drift gill permit to the
department in exchange for the two additional deep set buoy gear
permits within two years of the federal authorization to use deep
set buoy gear or similar gear.

(c) The department may issue one additional deep set buoy gear
permit to each actively fished drift gill net permitholder and each
person who holds a drift gill net permit but who fished with deep
set buoy gear under a federal exempted fishing permit since January
1, 2010, if the person surrenders the drift gill permit to the
department in exchange for the additional deep set buoy gear permit
within four years of the federal authorization to use deep set buoy
gear or similar gear.

(d) The department may issue one deep set buoy gear permit to
a person who held a latent drift gill net permit prior to January 1,
2017.

8584.3.  

The department shall not issue permits in addition to
those issued pursuant to Section 8584.2 for the deep set buoy gear
fishery until five years after deep set buoy gear or similar gear is
authorized under federal law. The department shall establish a
maximum number of additional permits that may be issued
pursuant to this section. The department may issue permits pursuant
to this section as appropriate to accommodate additional fishing
effort and demonstrated demand for permits if the anticipated
levels of fishing effort by the holders of those permits pose no
more than a negligible risk to protected marine wildlife.

8584.4.  

Deep set buoy gear shall not be used to take swordfish
for commercial purposes, except under a revocable permit issued
by the department pursuant to this article.

8584.5.  

(a) The department shall establish measures and
incentives that are needed to prevent, reduce, and eliminate the
incidence of derelict deep set buoy gear left at sea to the extent
that these measures are not established pursuant to federal law.

(b) The measures and incentives established pursuant to
subdivision (a) may include, but are not limited to, all of the
following:

(1) Registration of individual buoy systems under a tag issued
by the department.

(2) Requirements for labeling gear.

(3) Incentives for the retrieval and retention of gear, including,
fees for the issuance of buoy tags to replace lost buoy tags and
time delays for the issuance of replacement buoy tags.

8584.6.  

The department shall establish an annual fee for a deep
set buoy gear permit issued pursuant to this article at or below a
rate that is sufficient to cover the costs of the department of
administering this article.

8584.7.  

(a) A person holding a permit begin insert issued end insert pursuant to this
article may submit an application to the department to transfer the
permit to any person holding a license issued pursuant to Section
7850, subject to any requirements established by the department
governing transferability.

(b) The department shall establish a fee to transfer a permit
begin insert issued end insert pursuant to this section at or below a rate that is sufficient
to cover the department’s administrative costs in processing an
application.

SEC. 9.  

Section 35650 of the Public Resources Code is
amended to read:

35650.  

(a) The California Ocean Protection Trust Fund is
established in the State Treasury.

(b) Moneys deposited in the fund may be expended, upon
appropriation by the Legislature, for both of the following:

(1) Projects and activities authorized by the council consistent
with Chapter 3 (commencing with Section 35600).

(2) Upon authorization by the council, for grants or loans to
public agencies, nonprofit corporations, or private entities for, or
direct expenditures on, projects or activities that do one or more
of the following:

(A) Eliminate or reduce threats to coastal and ocean ecosystems,
habitats, and species.

(B) Improve the management of fisheries through grants or
loans for the development and implementation of fishery
management plans pursuant to Part 1.7 (commencing with Section
7050) of Division 6 of the Fish and Game Code, a part of the
Marine Life Management Act of 1998, that promote long-term
stewardship and collaboration with fishery participants to develop
strategies that increase environmental and economic sustainability.
Eligible projects and activities include, but are not limited to,
innovative community-based or cooperative management and
allocation strategies that create incentives for ecosystem
improvement. Eligible expenditures include, but are not limited
to, costs related to activities identified in subdivisions (a), (b), and
(d) of Section 7075 of the Fish and Game Code, fishery research,
monitoring, data collection and analysis to support adaptive
management, and other costs related to the development and
implementation of a fishery management plan developed pursuant
to this subparagraph.

(C) Foster sustainable fisheries, including grants or loans for
one or more of the following:

(i) Projects that encourage the development and use of more
selective fishing gear.

(ii) The design of community-based or cooperative management
mechanisms that promote long-term stewardship and collaboration
with fishery participants to develop strategies that increase
environmental and economic sustainability.

(iii) Collaborative research and demonstration projects between
fishery participants, scientists, and other interested parties.

(iv) Promotion of value-added wild fisheries to offset economic
losses attributable to reduced fishing opportunities.

(v) The creation of revolving loan programs for the purpose of
implementing sustainable fishery projects.

(D) Improve coastal water quality.

(E) Allow for increased public access to, and enjoyment of,
ocean and coastal resources, consistent with sustainable, long-term
protection and conservation of those resources.

(F) Improve management, conservation, and protection of
coastal waters and ocean ecosystems.

(G) Provide monitoring and scientific data to improve state
efforts to protect and conserve ocean resources.

(H) Protect, conserve, and restore coastal waters and ocean
ecosystems, including any of the following:

(i) Acquisition, installation, and initiation of monitoring and
enforcement systems.

(ii) Acquisition from willing sellers of vessels, equipment,
licenses, harvest rights, permits, and other rights and property, to
reduce threats to ocean ecosystems and resources.

(I) Address coastal water contamination from biological
pathogens, including collaborative projects and activities to identify
the sources of pathogens and develop detection systems and
treatment methods.

(J) (i) Provide funding for adaptive management, planning,
coordination, monitoring, research, and other necessary activities
to minimize the adverse impacts of climate change on California’s
ocean ecosystem, including, but not limited to, the effects of sea
level rise, changes in ocean productivity, and ocean acidification
on coastal and ocean habitat, wildlife, fisheries, chemistry, and
other key attributes of ocean ecosystems and to increase the state’s
understanding of the ocean’s role in carbon sequestration. Adaptive
management strategies, planning, research, monitoring, or other
activities shall be designed to improve the management of coastal
and ocean resources or aid the state to adapt to climate change
impacts.

(ii) Information or activities developed under clause (i), to the
extent appropriate, shall provide guidance to the State Air
Resources Board for the adoption of early action measures for the
elimination or reduction of emissions from sources or categories
of sources pursuant to the California Global Warming Solutions
Act begin insert of 2006 end insert (Division 25.5 (commencing with Section 38500) of
the Health and Safety Code).

(K) (i) Provide funding for the innovation and adoption of
sustainable commercial fishing methods for swordfish including
deep set buoy gear and other fishing methods with comparably
low environmental impacts. In providing this funding, the council
may authorize the purchase of all of the following:

(I) Deep set buoy gear for a person who holds an exempted
fishing permit as of January 1, 2016, issued by the National Marine
Fisheries Service to take swordfish in the fishery governed pursuant
to the Highly Migratory Species Fishery Management Plan.

(II) Deep set buoy gear for the first 10 persons who exchange
their permits pursuant to Section 8584.2.

(ii) Develop marketing and business structures to support a high
and stable price for swordfish landed under a permit issued
pursuant to Article 16.5 (commencing with Section 8584) of
Chapter 2 of Part 3 of Division 6 of the Fish and Game Code.

(c) Grants or loans may be made to a private entity pursuant to
this section only for projects or activities that further public
purposes consistent with Sections 35510, 35515, and 35617.

(d) Consistent with the purposes specified in Section 35515,
and in furtherance of the findings in Sections 7059 and 7060 of
the Fish and Game Code, the council, in authorizing grants or loans
for projects or expenditures pursuant to this section, shall promote
coordination of state programs and activities that protect and
conserve ocean resources to avoid redundancy and conflicts to
ensure that the state’s programs and activities are complementary.

SEC. 10.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.