Amended in Senate May 31, 2016

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 amend Sections 8276.5, 8279.1, and 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.

(1)  Existing law regulates the Dungeness crab fishery and requires the Director of Fish and Wildlife to adopt a program 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.

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.

(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.

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.

(3)  Existing 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 Dungeness crab task force, 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 a person 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:

P2    1

SECTION 1.  

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

3(1) The Dungeness crab task force supports the Department of
4Fish and Wildlife issuing citations for abandoning traps in the
P3    1ocean and for fishing during the closed season of the Dungeness
2crab commercial fishery in addition to charging fees for the
3retrieval of Dungeness crab traps pursuant to the program
4established by this act.

5(2) The commercial Dungeness crab fishing industry does not
6tolerate strings of gear left in the ocean after the season closes.
7The program established by this act will provide an incentive to
8retrieve traps from the ocean.

9(3) Establishing this program will help reduce the risk of whale
10entanglements in commercial Dungeness crab fishing gear.

begin insert

11
(4) The program established pursuant to this act should be
12efficient and cost-effective, and should utilize entities in addition
13to the Department of Fish and Wildlife, including nongovernmental
14organizations, to help implement the program.

end insert

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

17

SEC. 2.  

Section 8276.5 of the Fish and Game Code is amended
18to read:

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.

38(D) The 55 California permits with the next highest California
39landings to those in subparagraph (C) shall receive a maximum
40allocation of 350 trap tags.

P4    1(E) The 55 California permits with the next highest California
2landings to those in subparagraph (D) shall receive a maximum
3allocation of 300 trap tags.

4(F) The remaining California permits with the next highest
5California landings to those in subparagraph (E), which are not
6described in paragraph (1) or (2) of subdivision (g) of Section
78276.4, shall receive a maximum allocation of 250 trap tags.

8(G) The California permits described in paragraphs (1) and (2)
9of subdivision (g) of Section 8276.4 shall receive a maximum
10allocation of 175 tags. The tags in this tier shall not be transferable
11for the first two years of the program.

12(2) Notwithstanding paragraph (1), the director shall not remove
13a permitholder from a tier described in paragraph (1), if, after an
14allocation is made pursuant to paragraph (1), an appeal pursuant
15to paragraph (8) places a permitholder in a tier different than the
16original allocation.

17(3) Participants in the program shall meet all of the following
18requirements:

19(A) Unless a participant receives a waiver pursuant to paragraph
20(4), pay a biennial fee for each trap tag issued pursuant to this
21section to pay the pro rata share of costs of the program, including,
22but not limited to, informing permitholders of the program,
23collecting fees, acquiring and sending trap tags to permitholders,
24paying for a portion of enforcement costs, and monitoring the
25results of the program. The fee shall not exceed five dollars ($5)
26per trap, per two-year period. All of the trap tags allocated to each
27permit pursuant to subdivision (a) shall be purchased by the
28permitholder or the permit shall be void.

29(B) Purchase a biennial crab trap limit permit of not more than
30one thousand dollars ($1,000) per two-year period to pay for the
31department’s reasonable regulatory costs.

32(C) Not lease a crab trap tag, and transfer a tag only as part of
33a transaction to purchase a California permitted crab vessel.

34(D) A Dungeness crab trap that is fished shall contain a trap tag
35that is fastened to the main buoy, and an additional tag provided
36by the permitholder attached to the trap. The department shall
37mandate the information that is required to appear on both buoy
38and trap tags.

39(4) The department shall issue a participant a waiver from the
40biennial fee for each trap tag described in subparagraph (A) of
P5    1paragraph (3) if the participant is unable to fish due to mandatory
2military service and the participant submits a request for a waiver
3to the department at the same time that the participant renews the
4permit issued pursuant to subparagraph (B) of paragraph (3). A
5participant who receives a waiver pursuant to this paragraph shall
6not apply to the department to fish for Dungeness crab during the
7first year of the waiver, but may apply to fish for Dungeness crab
8during the second year of the waiver if the participant pays the full
9cost of the biennial fee for each trap tag. The department shall not
10limit the number of times a participant may request a waiver.

11(5) Notwithstanding subparagraph (D) of paragraph (3), a vessel
12 may transit state waters with Dungeness crab traps that are not
13tagged pursuant to subparagraph (D) of paragraph (3) if the traps
14contain either a valid Oregon or Washington trap tag, no crab
15species are onboard the vessel, and the traps are not deployed in
16state waters.

17(6) The department shall annually provide an accounting of all
18costs associated with the crab trap limit program. The department
19shall use excess funds collected to reduce the cost of the crab trap
20limit permit fee or tag fee in subsequent years of the program.

21(7) Permitholders may replace lost tags by application to the
22department and payment of a fee not to exceed the reasonable costs
23incurred by the department. The department may waive or reduce
24a fee in the case of catastrophic loss of tags.

25(8) (A) Any Dungeness crab permitholder may submit to the
26director an appeal of a trap tag allocation received pursuant to this
27section, by March 31, 2014, on a permit-by-permit basis for the
28purpose of revising upward or downward any trap tag allocation.
29Any appeal to revise upward a trap tag allocation shall be based
30on evidence that a permit’s California landings during the period
31between November 15, 2003, and July 15, 2008, inclusive, were
32reduced as a result of unusual circumstances and that these
33circumstances constitute an unfair hardship, taking into account
34the overall California landings history as indicated by landing
35receipts associated with the permit. The director shall initiate the
36appeal process within 12 months of receiving an appeal request.
37The appeal shall be heard and decided by an administrative law
38judge of the Office of Administrative Hearings, whose decision
39shall constitute the final administrative decision. Except as
40provided in subparagraph (B), any Dungeness crab permitholder
P6    1requesting an appeal to revise upward the permitholder’s trap tag
2allocation shall pay all expenses, including a nonrefundable filing
3fee, as determined by the department, to pay for the department’s
4reasonable costs associated with the appeal process described in
5this paragraph.

6(B) Any Dungeness crab permitholder requesting an appeal may
7apply to the administrative law judge for a waiver of the appeal
8fees. In making the determination, the administrative law judge
9may only consider medical hardship or military service occurring
10during the tier qualifying window period of November 15, 2003,
11through July 15, 2008.

12(C) An appeal to revise downward a trap tag allocation shall be
13decided by the department.

14(b) (1) In addition to criminal penalties authorized by law, a
15violation of the requirements of the program created pursuant to
16this section shall be subject to the following civil penalties:

17(A) Conviction of a first offense shall result in a fine of not less
18than two hundred fifty dollars ($250) and not more than one
19thousand dollars ($1,000) per illegal trap or fraudulent tag.

20(B) Conviction of a second offense shall result in a fine of not
21less than five hundred dollars ($500) and not more than two
22thousand five hundred dollars ($2,500) per illegal trap or fraudulent
23tag, and the permit may be suspended for one year.

24(C) Conviction of a third offense shall result in a fine of not less
25than one thousand dollars ($1,000) and not more than five thousand
26dollars ($5,000) per illegal trap or fraudulent tag, and the permit
27may be permanently revoked.

28(2) The severity of a penalty within the ranges described in this
29subdivision shall be based on a determination whether the violation
30was willful or negligent and other factors.

31(3) The portion of monetary judgments for noncompliance that
32are paid to the department shall be deposited in the Dungeness
33Crab Account created pursuant to subdivision (e).

34(c) For the purposes of this section, a proposed recommendation
35that receives an affirmative vote of at least 15 of the non-ex officio
36members of the Dungeness crab task force may be transmitted to
37the director or the Legislature as a recommendation, shall be
38considered to be the consensus of the task force, and shall be
39considered to be evidence of consensus in the Dungeness crab
40industry. Any proposed recommendation that does not receive a
P7    1vote sufficient to authorize transmittal to the director or Legislature
2as a recommendation shall be evidence of a lack of consensus by
3the Dungeness crab task force, and shall be considered to be
4evidence of a lack of consensus in the crab industry.

5(d) (1) The director shall submit a proposed program pursuant
6to this section to the Dungeness crab task force for review, and
7shall not implement the program until the task force has had 60
8days or more to review the proposed program and recommend any
9proposed changes. The director may implement the program earlier
10than 60 days after it is submitted to the Dungeness crab task force
11for review, if recommended by the task force.

12(2) After the program is implemented pursuant to paragraph
13(1), the director may modify the program, if consistent with the
14requirements of this section, after consultation with the Dungeness
15crab task force or its representatives and after the task force has
16had 60 days or more to review the proposed modifications and
17recommend any proposed changes. The director may implement
18the modifications earlier than 60 days after it is sent to the
19Dungeness crab task force for review, if recommended by the task
20force.

21(e) The Dungeness Crab Account is hereby established in the
22Fish and Game Preservation Fund and the fees collected pursuant
23to this section shall be deposited in that account. The money in
24the account shall be used by the department, upon appropriation
25by the Legislature, for administering and enforcing the program.

26(f) For purposes of meeting the necessary expenses of initial
27organization and operation of the program until fees may be
28collected, or other funding sources may be received, the department
29may borrow money as needed for these expenses from the council.
30The borrowed money shall be repaid within one year from the fees
31collected or other funding sources received. The council shall give
32high priority to providing funds or services to the department, in
33addition to loans, to assist in the development of the program,
34including, but not limited to, the costs of convening the Dungeness
35crab task force, environmental review, and the department’s costs
36of attending meetings with task force members.

37(g) (1) It is the intent of the Legislature that the department,
38the council, and the Dungeness crab task force work with the
39Pacific States Marine Fisheries Commission and the Tri-state
40Dungeness Crab Commission to resolve any issues pertaining to
P8    1moving the fair start line south to the border of California and
2Mexico.

3(2) For the purposes of this subdivision, the resolution of issues
4pertaining to the fair start line shall be limited to assessing the
5positive and negative implications of including District 10 in the
6tri-state agreement, including working with the Tri-state Dungeness
7Crab Commission to amend Oregon and Washington laws to
8include District 10 in the regular season fair start clause, and
9discussion of providing different rules for District 10 with regard
10to preseason quality testing.

11(h) For purposes of this section, “council” means the Ocean
12Protection Council established pursuant to Section 35600 of the
13Public Resources Code.

14(i) This section shall become inoperative on April 1, 2019, and,
15as of January 1, 2020, is repealed, unless a later enacted statute,
16that becomes operative on or before January 1, 2020, deletes or
17extends the dates on which it becomes inoperative and is repealed.

18

SEC. 3.  

Section 8279.1 of the Fish and Game Code is amended
19to read:

20

8279.1.  

(a) A person shall not take, possess onboard, or land
21Dungeness crab for commercial purposes from a vessel in ocean
22waters in District 6, 7, 8, or 9 for 30 days after the opening of the
23Dungeness crab fishing season in California, if both of the
24following events have occurred:

25(1) The opening of the season has been delayed pursuant to state
26law in California.

27(2) The same vessel was used to take, possess onboard, or land
28Dungeness crab for commercial purposes, from ocean waters
29outside of District 6, 7, 8, or 9, prior to the opening of the season
30in those districts.

31(b) A person shall not take, possess onboard, or land Dungeness
32crab for commercial purposes from a vessel in ocean waters south
33of the border between Oregon and California for 30 days after the
34opening of the Dungeness crab fishing season in California, if both
35of the following events have occurred:

36(1) The opening of the season has been delayed pursuant to state
37law in California.

38(2) The same vessel was used to take, possess onboard, or land
39Dungeness crab for commercial purposes in Oregon or Washington
40prior to the opening of the season in California.

P9    1(c) A person shall not take, possess onboard, or land Dungeness
2crab for commercial purposes from a vessel in ocean waters north
3of the border between Oregon and California for 30 days after the
4opening of the Dungeness crab fishing season in Oregon or
5Washington, if both of the following events have occurred:

6(1) The opening of the season has been delayed in Oregon or
7Washington.

8(2) The same vessel was used to take, possess onboard, or land
9Dungeness crab for commercial purposes in California prior to the
10opening of the season in ocean waters off Oregon or Washington.

11(d) A person shall not take, possess onboard, or land Dungeness
12crab for commercial purposes from a vessel in ocean waters off
13Washington, Oregon, or California for 30 days after the opening
14of the Dungeness crab fishing season in California, Oregon, or
15Washington, if both of the following events have occurred:

16(1) The opening of the season has been delayed in Washington,
17Oregon, or California.

18(2) The same vessel was used to take, possess onboard, or land
19Dungeness crab for commercial purposes in either of the two other
20states prior to the delayed opening in the ocean waters off any one
21of the three states.

22(e) A violation of this section does not constitute a misdemeanor.
23Pursuant to Section 7857, the commission shall revoke the
24Dungeness crab vessel permit that was issued for use on the vessel
25that was used in violation of this section.

26(f) This section shall become inoperative on April 1, 2019, and,
27as of January 1, 2020, is repealed, unless a later enacted statute,
28that becomes operative on or before January 1, 2020, deletes or
29extends the dates on which it becomes inoperative and is repealed.

30

SEC. 4.  

Section 9002.5 of the Fish and Game Code is amended
31to read:

32

9002.5.  

(a) Notwithstanding Section 9002, the department, in
33consultation with the Dungeness crab task force, shall develop
34regulations as necessary to provide for the retrieval of lost or
35abandoned commercial crab traps.

36(b) (1) As part of the regulations adopted pursuant to
37subdivision (a), the department shall establish a retrieval permit
38programbegin insert that facilitates the removal of lost or abandoned crab
39gear in an efficient and cost-effective mannerend insert
consistent with all
40of the following:

P10   1(A) The department shall establish a retrieval permit that grants
2a person who obtains a retrieval permit the authority to retrieve
3during the closed season of the Dungeness crab commercial fishery
4lost or abandoned Dungeness crab traps belonging to another
5person and to receive compensation for that retrieval on a per trap
6basis from the revenue generated by the fee established pursuant
7to subparagraph (B).

8(B) The department shall establish a fee to be charged to a
9Dungeness crab vessel permitholder for each trap belonging to the
10permitholder that is retrieved through the program. The department
11shall set the fee at a level sufficient to cover the reasonable
12regulatory costs associated with the program and to provide
13reasonable compensation to a retrieval permitholder on a per trap
14basis. The reasonable regulatory costs associated with the program
15include, but are not limited to, administrative costs, storage costs,
16and costs associated with disposing unusable traps or traps whose
17owner cannot be identified.

begin delete

18(C) The department shall determine how a Dungeness crab trap
19retrieved through the program shall be stored and how the owner
20of the trap shall be notified with regard to claiming the trap.

end delete
begin insert

21
(C) The department may use entities in addition to the
22department, including, but not limited to, nongovernmental
23organizations, to help implement the program.

end insert

24(D) A Dungeness crab trap shall not be returned to the owner
25of the trap until the owner has paid the fee established pursuant to
26subparagraph (B).

27(E) The department shall not renew a Dungeness crab vessel
28permit until any fee imposed pursuant to subparagraph (B) has
29been paid.

30(2) The department may adopt additional requirements necessary
31to implement the program described in this subdivision.

32(3) The department shall submit the proposed program
33developed pursuant to this subdivision to the Dungeness crab task
34force for review, and shall not implement the program until the
35task force has had 60 days or more to review the proposed program
36and recommend any proposed changes. The director may
37implement the program earlier than 60 days after it is submitted
38to the Dungeness crab task force for review, if recommended by
39the task force.

P11   1(c) This section shall become inoperative on April 1, 2019, and,
2as of January 1, 2020, is repealed, unless a later enacted statute,
3that becomes operative on or before January 1, 2020, deletes or
4extends the dates on which it becomes inoperative and is repealed.



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