Amended in Senate March 28, 2016

Senate BillNo. 1287


Introduced by Senator McGuire

(Coauthors: Assembly Members Achadjian, Levine, and Wood)

February 19, 2016


An act to amendbegin delete Sectionend deletebegin insert Sections 8276.5, 8279.1, andend insert 9002.5 of the Fish and Game Code, relating to commercial fishing.

LEGISLATIVE COUNSEL’S DIGEST

SB 1287, as amended, McGuire. Commercial fishing: Dungeness crab.

begin delete

Existing

end delete

begin insert(1)end insertbegin insertend insertbegin insertExisting end insertlaw regulates the Dungeness crab fishery andbegin delete prohibits a person from using a vessel to take, possess, or land Dungeness crab for commercial purposes without a Dungeness crab vessel permit. Existing law requires a commercial Dungeness crab trap to be marked with a buoy and the buoy to be marked with an identification number. Existingend deletebegin insert requires the Director of Fish and Wildlife to adopt a programend insertbegin insert for Dungeness crab trap limits for all California permits. The program requires participants to pay a $5 crab trap tag fee and a $1,000 crab trap limit fee on a biennial basis, as provided, and requires a Dungeness crab trap that is fished to contain a trap tag that is fastened to the main buoy, and an additional tag attached to the trap. Existing law makes the program inoperative on April 1, 2019.end insert

begin insert

This bill would require the department to issue a waiver from the biennial crab trap tag fee to a participant who is unable to fish due to mandatory military service, as provided. The bill would authorize a vessel to transit state waters with Dungeness crab traps that are not marked in the above-described manner if traps contain either valid Oregon or Washington tags, no crab is onboard the vessel, and the traps are not deployed in state waters.

end insert
begin insert

(2) Existing law prohibits a person from using any vessel to take Dungeness crab for commercial purposes without a Dungeness crab vessel permit. Existing law prohibits a person from taking Dungeness crab for commercial purposes from a vessel in specified ocean waters for 30 days after the opening of the Dungeness crab fishing season if the opening of the season has been delayed in those waters and that person has taken, possessed, or landed Dungeness crab in other specified waters prior to that opening. Existing law requires the Fish and Game Commission to revoke the Dungeness crab vessel permit of any person who violates these provisions. Existing law makes these provisions inoperative on April 1, 2019.

end insert
begin insert

This bill would limit the 30-day start prohibition to a situation in which a person uses the same vessel that was used to take Dungeness crab in specified waters before the delayed opening of the season in the areas subject to the prohibition.

end insert

begin insert(end insertbegin insert3)end insertbegin insertend insertbegin insertExistingend insert law regulating commercial fishing traps makes it unlawful, except as specified, to willfully or recklessly disturb, move, or damage any trap that belongs to another person and that is marked with a buoy identification number. Existing law, until April 1, 2019, authorizes the department, in consultation with the Dungenessbegin delete Crab Task Force,end deletebegin insert crab task force,end insert to develop regulations as necessary to provide for the retrieval of lost or abandoned commercial crab traps.

This bill would require the department, as part of the above-described regulations, to establish a retrieval permit program that would grant abegin delete Dungeness crab vessel permitholderend deletebegin insert personend insert who obtains a retrieval permit the authority to retrieve during the closed season of the Dungeness crab commercial fishery lost or abandoned Dungeness crab traps belonging to another person and to receive compensation for that retrieval on a per trap basis. The bill would require the department to establish a fee to be charged to a Dungeness crab vessel permitholder for each trap belonging to the permitholder that is retrieved through the program. The bill would prohibit the department from renewing a Dungeness crab vessel permit until any fee imposed pursuant to the program has been paid.

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

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

P3    1

SECTION 1.  

(a) The Legislature finds and declares all of the
2following:

3(1) The Dungenessbegin delete Crab Task Forceend deletebegin insert crab task forceend insert supports
4the Department of Fish and Wildlife issuing citations for
5abandoning traps in the ocean and for fishing during the closed
6season of the Dungeness crab commercial fishery in addition to
7charging fees for the retrieval of Dungeness crab traps pursuant
8to the program established by this act.

9(2) The commercial Dungeness crab fishing industry does not
10tolerate strings of gear left in the ocean after the season closes.
11The program established by this act will provide an incentive to
12retrieve traps from the ocean.

13(3) Establishing this program will help reduce the risk of whale
14entanglements in commercial Dungeness crab fishing gear.

15(b) This act shall be known and may be cited as the Whale
16Protection and Crab Gear Retrieval Act.

17begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 8276.5 of the end insertbegin insertFish and Game Codeend insertbegin insert is amended
18to read:end insert

19

8276.5.  

(a) In consultation with the Dungeness crab task force,
20or its appointed representatives, the director shall adopt a program,
21by March 31, 2013, for Dungeness crab trap limits for all California
22permits. Unless the director finds that there is consensus in the
23Dungeness crab industry that modifications to the following
24requirements are more desirable, with evidence of consensus,
25including, but not limited to, the record of the Dungeness crab task
26force, the program shall include all of the following requirements:

27(1) The program shall contain seven tiers of Dungeness crab
28trap limits based on California landings receipts under California
29permits between November 15, 2003, and July 15, 2008, as follows:

30(A) The 55 California permits with the highest California
31landings shall receive a maximum allocation of 500 trap tags.

32(B) The 55 California permits with the next highest California
33landings to those in subparagraph (A) shall receive a maximum
34allocation of 450 trap tags.

35(C) The 55 California permits with the next highest California
36landings to those in subparagraph (B) shall receive a maximum
37allocation of 400 trap tags.

P4    1(D) The 55 California permits with the next highest California
2landings to those in subparagraph (C) shall receive a maximum
3allocation of 350 trap tags.

4(E) The 55 California permits with the next highest California
5landings to those in subparagraph (D) shall receive a maximum
6allocation of 300 trap tags.

7(F) The remaining California permits with the next highest
8California landings to those in subparagraph (E), which are not
9described in paragraph (1) or (2) of subdivision (g) of Section
108276.4, shall receive a maximum allocation of 250 trap tags.

11(G) The California permits described in paragraphs (1) and (2)
12of subdivision (g) of Section 8276.4 shall receive a maximum
13allocation of 175 tags. The tags in this tier shall not be transferable
14for the first two years of the program.

15(2) Notwithstanding paragraph (1), the director shall not remove
16a permitholder from a tier described in paragraph (1), if, after an
17allocation is made pursuant to paragraph (1), an appeal pursuant
18to paragraphbegin delete (6)end deletebegin insert (8)end insert places a permitholder in a tier different than
19the original allocation.

20(3) Participants in the program shall meet all of the following
21requirements:

22(A) begin deletePay end deletebegin insertUnless a participant receives a waiver pursuant to
23paragraph (end insert
begin insert4)end insertbegin insert, pay end inserta biennial fee for each trap tag issued pursuant
24to this section to pay the pro rata share of costs of the program,
25including, but not limited to, informing permitholders of the
26program, collecting fees, acquiring and sending trap tags to
27permitholders, paying for a portion of enforcement costs, and
28monitoring the results of the program. The fee shall not exceed
29five dollars ($5) per trap, per two-year period. All of the trap tags
30allocated to each permit pursuant to subdivision (a) shall be
31purchased by the permitholder or the permit shall be void.

32(B) Purchase a biennial crab trap limit permit of not more than
33one thousand dollars ($1,000) per two-year period to pay for the
34department’s reasonable regulatory costs.

35(C) Not lease a crab trap tag, and transfer a tag only as part of
36a transaction to purchase a California permitted crab vessel.

37(D) A Dungeness crab trap that is fished shall contain a trap tag
38that is fastened to the main buoy, and an additional tag provided
39by the permitholder attached to the trap. The department shall
P5    1mandate the information that is required to appear on both buoy
2and trap tags.

begin insert

3
(4) The department shall issue a participant a waiver from the
4biennial fee for each trap tag described in subparagraph (A) of
5paragraph (3) if the participant is unable to fish due to mandatory
6military service and the participant submits a request for a waiver
7to the department at the same time that the participant renews the
8permit issued pursuant to subparagraph (B) of paragraph (3). A
9participant who receives a waiver pursuant to this paragraph shall
10not apply to the department to fish for Dungeness crab during the
11first year of the waiver, but may apply to fish for Dungeness crab
12during the second year of the waiver if the participant pays the
13full cost of the biennial fee for each trap tag. The department shall
14not limit the number of times a participant may request a waiver.

end insert
begin insert

15
(5) Notwithstanding subparagraph (D) of paragraph (3), a
16vessel may transit state waters with Dungeness crab traps that are
17not tagged pursuant to subparagraph (D) of paragraph (3) if the
18traps contain either a valid Oregon or Washington trap tag, no
19crab species are onboard the vessel, and the traps are not deployed
20in state waters.

end insert
begin delete

21(4)

end delete

22begin insert(end insertbegin insert6)end insert The department shall annually provide an accounting of all
23costs associated with the crab trap limit program. The department
24shall use excess funds collected to reduce the cost of the crab trap
25limit permit fee or tag fee in subsequent years of the program.

begin delete

26(5)

end delete

27begin insert(end insertbegin insert7)end insert Permitholders may replace lost tags by application to the
28department and payment of a fee not to exceed the reasonable costs
29incurred by the department. The department may waive or reduce
30a fee in the case of catastrophic loss of tags.

begin delete

31(6)

end delete

32begin insert(end insertbegin insert8)end insert (A) Any Dungeness crab permitholder may submit to the
33director an appeal of a trap tag allocation received pursuant to this
34section, by March 31, 2014, on a permit-by-permit basis for the
35purpose of revising upward or downward any trap tag allocation.
36Any appeal to revise upward a trap tag allocation shall be based
37on evidence that a permit’s California landings during the period
38between November 15, 2003, and July 15, 2008, inclusive, were
39reduced as a result of unusual circumstances and that these
40circumstances constitute an unfair hardship, taking into account
P6    1the overall California landings history as indicated by landing
2receipts associated with the permit. The director shall initiate the
3appeal process within 12 months of receiving an appeal request.
4The appeal shall be heard and decided by an administrative law
5judge of the Office of Administrative Hearings, whose decision
6shall constitute the final administrative decision. Except as
7provided in subparagraph (B), any Dungeness crab permitholder
8requesting an appeal to revise upward the permitholder’s trap tag
9allocation shall pay all expenses, including a nonrefundable filing
10fee, as determined by the department, to pay for the department’s
11reasonable costs associated with the appeal process described in
12this paragraph.

13(B) Any Dungeness crab permitholder requesting an appeal may
14apply to the administrative law judge for a waiver of the appeal
15fees. In making the determination, the administrative law judge
16may only consider medical hardship or military service occurring
17during the tier qualifying window period of November 15, 2003,
18through July 15, 2008.

19(C) An appeal to revise downward a trap tag allocation shall be
20decided by the department.

21(b) (1) In addition to criminal penalties authorized by law, a
22violation of the requirements of the program created pursuant to
23this section shall be subject to the following civil penalties:

24(A) Conviction of a first offense shall result in a fine of not less
25than two hundred fifty dollars ($250) and not more than one
26thousand dollars ($1,000) per illegal trap or fraudulent tag.

27(B) Conviction of a second offense shall result in a fine of not
28less than five hundred dollars ($500) and not more than two
29thousand five hundred dollars ($2,500) per illegal trap or fraudulent
30tag, and the permit may be suspended for one year.

31(C) Conviction of a third offense shall result in a fine of not less
32than one thousand dollars ($1,000) and not more than five thousand
33dollars ($5,000) per illegal trap or fraudulent tag, and the permit
34may be permanently revoked.

35(2) The severity of a penalty within the ranges described in this
36subdivision shall be based on a determination whether the violation
37was willful or negligent and other factors.

38(3) The portion of monetary judgments for noncompliance that
39are paid to the department shall be deposited in the Dungeness
40Crab Account created pursuant to subdivision (e).

P7    1(c) For the purposes of this section, a proposed recommendation
2that receives an affirmative vote of at least 15 of the non-ex officio
3members of the Dungeness crab task force may be transmitted to
4the director or the Legislature as a recommendation, shall be
5considered to be the consensus of the task force, and shall be
6considered to be evidence of consensus in the Dungeness crab
7industry. Any proposed recommendation that does not receive a
8vote sufficient to authorize transmittal to the director or Legislature
9as a recommendation shall be evidence of a lack of consensus by
10the Dungeness crab task force, and shall be considered to be
11evidence of a lack of consensus in the crab industry.

12(d) (1) The director shall submit a proposed program pursuant
13to this section to the Dungeness crab task force for review, and
14shall not implement the program until the task force has had 60
15days or more to review the proposed program and recommend any
16proposed changes. The director may implement the program earlier
17than 60 days after it is submitted to the Dungeness crab task force
18for review, if recommended by the task force.

19(2) After the program is implemented pursuant to paragraph
20(1), the director may modify the program, if consistent with the
21requirements of this section, after consultation with the Dungeness
22crab task force or its representatives and after the task force has
23had 60 days or more to review the proposed modifications and
24recommend any proposed changes. The director may implement
25the modifications earlier than 60 days after it is sent to the
26Dungeness crab task force for review, if recommended by the task
27force.

28(e) The Dungeness Crab Account is hereby established in the
29Fish and Game Preservation Fund and the fees collected pursuant
30to this section shall be deposited in that account. The money in
31the account shall be used by the department, upon appropriation
32by the Legislature, for administering and enforcing the program.

33(f) For purposes of meeting the necessary expenses of initial
34organization and operation of the program until fees may be
35collected, or other funding sources may be received, the department
36may borrow money as needed for these expenses from the council.
37The borrowed money shall be repaid within one year from the fees
38collected or other funding sources received. The council shall give
39high priority to providing funds or services to the department, in
40addition to loans, to assist in the development of the program,
P8    1including, but not limited to, the costs of convening the Dungeness
2crab task force, environmental review, and the department’s costs
3of attending meetings with task force members.

4(g) (1) It is the intent of the Legislature that the department,
5the council, and the Dungeness crab task force work with the
6Pacific States Marine Fisheries Commission and the Tri-state
7Dungeness Crab Commission to resolve any issues pertaining to
8moving the fair start line south to the border of California and
9Mexico.

10(2) For the purposes of this subdivision, the resolution of issues
11pertaining to the fair start line shall be limited to assessing the
12positive and negative implications of including District 10 in the
13tri-state agreement, including working with the Tri-state Dungeness
14Crab Commission to amend Oregon and Washington laws to
15include District 10 in the regular season fair start clause, and
16discussion of providing different rules for District 10 with regard
17to preseason quality testing.

18(h) For purposes of this section, “council” means the Ocean
19Protection Council established pursuant to Section 35600 of the
20Public Resources Code.

21(i) This section shall become inoperative on April 1, 2019, and,
22as of January 1, 2020, is repealed, unless a later enacted statute,
23that becomes operative on or before January 1, 2020, deletes or
24extends the dates on which it becomes inoperative and is repealed.

25begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 8279.1 of the end insertbegin insertFish and Game Codeend insertbegin insert is amended
26to read:end insert

27

8279.1.  

(a) A person shall not take, possess onboard, or land
28Dungeness crab for commercial purposes frombegin delete anyend deletebegin insert aend insert vessel in
29ocean waters in District 6, 7, 8, or 9 for 30 days after the opening
30of the Dungeness crab fishing season in California, if both of the
31following events have occurred:

32(1) The opening of the season has been delayed pursuant to state
33law in California.

34(2) Thebegin delete person has taken, possessed onboard, or landedend deletebegin insert same
35vessel was used to take, possess onboard, or landend insert
Dungeness crab
36for commercial purposes, from ocean waters outside of District 6,
377, 8, or 9, prior to the opening of the season in those districts.

38(b) A person shall not take, possess onboard, or land Dungeness
39crab for commercial purposes frombegin delete anyend deletebegin insert aend insert vessel in ocean waters
40south of the border between Oregon and California for 30 days
P9    1after the opening of the Dungeness crab fishing season in
2California, if both of the following events have occurred:

3(1) The opening of the season has been delayed pursuant to state
4law in California.

5(2) Thebegin delete person has taken, possessed onboard, or landedend deletebegin insert same
6vessel was used to take, possess onboard, or landend insert
Dungeness crab
7for commercial purposes in Oregon or Washington prior to the
8opening of the season in California.

9(c) A person shall not take, possess onboard, or land Dungeness
10crab for commercial purposes frombegin delete anyend deletebegin insert aend insert vessel in ocean waters
11north of the border between Oregon and California for 30 days
12after the opening of the Dungeness crab fishing season in Oregon
13or Washington, if both of the following events have occurred:

14(1) The opening of the season has been delayed in Oregon or
15Washington.

16(2) Thebegin delete person has taken, possessed onboard, or landedend deletebegin insert same
17vessel was used to take, possess onboard, or landend insert
Dungeness crab
18for commercial purposes in California prior to the opening of the
19season in ocean waters off Oregon or Washington.

20(d) A person shall not take, possess onboard, or land Dungeness
21crab for commercial purposes frombegin delete anyend deletebegin insert aend insert vessel in ocean waters
22off Washington, Oregon, or California for 30 days after the opening
23of the Dungeness crab fishing season in California, Oregon, or
24Washington, if both of the following events have occurred:

25(1) The opening of the season has been delayed in Washington,
26Oregon, or California.

27(2) Thebegin delete person has taken, possessed onboard, or landedend deletebegin insert same
28vessel was used to take, possess onboard, or landend insert
Dungeness crab
29for commercial purposes in either of the two other states prior to
30the delayed opening in the ocean waters off any one of the three
31states.

32(e) A violation of this section does not constitute a misdemeanor.
33Pursuant to Section 7857, the commission shall revoke the
34Dungeness crab vessel permitbegin delete held by any person who violatesend delete
35begin insert that was issued for use on the vessel that was used in violation ofend insert
36 this section.

37(f) This section shall become inoperative on April 1, 2019, and,
38as of January 1, 2020, is repealed, unless a later enacted statute,
39that becomes operative on or before January 1, 2020, deletes or
40extends the dates on which it becomes inoperative and is repealed.

P10   1

begin deleteSEC. 2.end delete
2
begin insertSEC. 4.end insert  

Section 9002.5 of the Fish and Game Code is amended
3to read:

4

9002.5.  

(a) Notwithstanding Section 9002, the department, in
5consultation with the Dungenessbegin delete Crab Task Force,end deletebegin insert crab task force,end insert
6 shall develop regulations as necessary to provide for the retrieval
7of lost or abandoned commercial crab traps.

8(b) begin insert(1)end insertbegin insertend insert As part of the regulations adopted pursuant to
9subdivision (a), the department shall establish a retrieval permit
10program consistent with all of the following:

begin delete

11(1)

end delete

12begin insert(end insertbegin insertA)end insert The department shall establish a retrieval permit that grants
13abegin delete Dungeness crab vessel permitholderend deletebegin insert personend insert who obtains a
14retrieval permit the authority to retrieve during the closed season
15of the Dungeness crab commercial fishery lost or abandoned
16Dungeness crab traps belonging to another person and to receive
17compensation for that retrieval on a per trap basis from the revenue
18generated by the fee established pursuant tobegin delete paragraph (2).end delete
19
begin insert subparagraph (B).end insert

begin delete

20(2)

end delete

21begin insert(end insertbegin insertB)end insert The department shall establish a fee to be charged to a
22Dungeness crab vessel permitholder for each trap belonging to the
23permitholder that is retrieved through the program. The department
24shall set the fee at a level sufficient to cover the reasonable
25regulatory costs associated with the program and to provide
26reasonable compensation to a retrieval permitholder on a per trap
27basis. The reasonable regulatory costs associated with the program
28include, but are not limited to, administrative costs, storage costs,
29and costs associated with disposing unusable traps or traps whose
30owner cannot be identified.

begin delete

31(3)

end delete

32begin insert(end insertbegin insertC)end insert The department shall determine how a Dungeness crab trap
33retrieved through the program shall be stored and how the owner
34of the trap shall be notified with regard to claiming the trap.

begin delete

35(4)

end delete

36begin insert(end insertbegin insertD)end insert A Dungeness crab trap shall not be returned to the owner
37of the trap until the owner has paid the fee established pursuant to
38
begin delete paragraph (2).end deletebegin insert subparagraph (B).end insert

begin delete

39(5)

end delete

P11   1begin insert(end insertbegin insertE)end insert The department shall not renew a Dungeness crab vessel
2permit until any fee imposed pursuant tobegin delete paragraph (2)end delete
3begin insert subparagraph (B)end insert has been paid.

begin delete

4(c)

end delete

5begin insert(end insertbegin insert2)end insert The department may adopt additional requirements necessary
6to implement the program described inbegin delete subdivision (b).end deletebegin insert this
7subdivision.end insert

begin insert

8
(3) The department shall submit the proposed program
9developed pursuant to this subdivision to the Dungeness crab task
10force for review, and shall not implement the program until the
11task force has had 60 days or more to review the proposed program
12and recommend any proposed changes. The director may
13implement the program earlier than 60 days after it is submitted
14to the Dungeness crab task force for review, if recommended by
15the task force.

end insert
begin delete

16(d)

end delete

17begin insert(end insertbegin insertc)end insert This section shall become inoperative on April 1, 2019, and,
18as of January 1, 2020, is repealed, unless a later enacted statute,
19that becomes operative on or before January 1, 2020, deletes or
20extends the dates on which it becomes inoperative and is repealed.



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