BILL NUMBER: AB 2941 CHAPTERED 09/11/00 CHAPTER 388 FILED WITH SECRETARY OF STATE SEPTEMBER 11, 2000 APPROVED BY GOVERNOR SEPTEMBER 8, 2000 PASSED THE SENATE AUGUST 25, 2000 PASSED THE ASSEMBLY AUGUST 25, 2000 AMENDED IN SENATE AUGUST 22, 2000 AMENDED IN SENATE AUGUST 14, 2000 AMENDED IN SENATE JUNE 19, 2000 AMENDED IN ASSEMBLY MAY 26, 2000 AMENDED IN ASSEMBLY MAY 16, 2000 AMENDED IN ASSEMBLY MAY 8, 2000 INTRODUCED BY Committee on Water, Parks and Wildlife (Machado (Chair), Aanestad, Calderon, Dickerson, Florez, Frusetta, Kuehl, Margett, Strom-Martin, Thomson, and Wayne) APRIL 6, 2000 An act to amend Sections 391, 5521.5, 6432, 7072, 7655, 8022, 8101, 8150.5, 8150.7, 8394.5, 8411, 8412, 8550.5, 8552.8, 11019, 12002.3, 12006.6, 12009, and 12157 of, to amend and renumber Section 6439 of, and to repeal Sections 6433, 6434, 6435, 6436, 6437, 6438, 8150.8, 8150.9, 8151, 8152, 8410, 8413, 8414, 8415, and 8664.65 of, the Fish and Game Code, relating to commercial fishing, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST AB 2941, Committee on Water, Parks and Wildlife. Commercial fishing. (1) Existing law requires approval by the Attorney General in order for the Department of Fish and Game to enter into a reciprocal agreement with a federal or county agency or an agency in another state to exchange records and other information regarding those suspected of a violation of the Fish and Game Code. This bill would delete the requirement that the Attorney General approve those reciprocal agreements. (2) Existing provisions of the Fish and Game Code, to be repealed on January 1, 2004, require the Department of Fish and Game to adopt prescribed guidelines of the International Maritime Organizations relating to ship ballast water and sediment discharges. This bill would delete this requirement, and instead, would require the department to work cooperatively with the State Lands Commission and the State Water Resources Control Board to implement the Ballast Water Management Program established in the Public Resources Code, and would make conforming changes. (3) Existing law makes it unlawful to take abalone for commercial purposes in certain areas, as specified. This bill would enact a rebuttable presumption that a person who takes or possesses more than 12 abalone possesses the abalone for commercial purposes. (4) Existing law requires that nominations for the Pacific Fishery Management Council include representatives from several fisheries, including the anchovy fishery. This bill would replace representation on the council for the anchovy fishery with representation from the coastal pelagic species fishery. (5) Existing law generally provides that information filed with the department pursuant to the regulation of commercial fishing is confidential. This bill would permit the department to release this information to any federal agency responsible for fishery management activities, to any federal, state or local agency for the purpose of law enforcement, or pursuant to a court order. (6) Existing law provides that sardines may only be taken or possessed on any vessel in conformance with the permit system developed by the department, with certain exceptions as specified. This bill would delete the exception for sardines taken incidentally to other fishing operations. (7) Existing law requires that the sardine and Pacific mackerel resource be maintained at certain populations, as specified. This bill would repeal various statutory requirements and would, instead, require that the sardine and Pacific mackerel resource be managed to maximize sustained harvest, and would require the department to do so in conformance with the recommendations of the Pacific Fishery Management Council as adopted by the Secretary of Commerce. (8) Existing law provides for the issuance of permits to take herring with gill and round haul nets. This bill would delete the provision providing for the issuance of a license to take herring with round haul nets. (9) Existing law provides certain penalties for any person convicted of taking or possessing more than 36 abalone in a specified area of District 10. This bill would make this prohibition applicable statewide, and would modify the requirement so that it applies to a person who takes more than 100 abalone in a calendar year, or who possesses more than 12 abalone at one time and in so doing would impose a state-mandated local program. (10) Existing law prescribes various penalties for taking or possessing abalone in specified areas, including imprisonment in the county jail for not more than one year. This bill would increase the maximum fines associated with abalone related violations. (11) Existing law requires that upon the conviction of a person for violating, among other things, provisions relating to endangered or protected species, the judge in the proceeding must order the forfeiture of any device, apparatus, or automobile used in committing the offense. This bill would authorize a judge to order the forfeiture of those items in a proceeding where a person is convicted of violating certain provisions relating to the illegal possession, sale, or purchase of abalone for commercial purposes. (12) The bill would delete obsolete provisions. (13) Existing law requires that the proceeds from sales of forfeited property under certain provisions of the Fish and Game Code be deposited in the Fish and Game Preservation Fund, a continuously appropriated fund. This bill would make an appropriation by increasing the amount of fines for violations relating to the taking of abalone. (14) 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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. Appropriation: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 391 of the Fish and Game Code is amended to read: 391. The department may exchange or release to any appropriate federal, state, or local agency or agencies in other states, for purposes of law enforcement, any information collected or maintained by the department under any provision of this code or any regulation adopted pursuant to this code. SEC. 2. Section 5521.5 of the Fish and Game Code is amended to read: 5521.5. (a) In addition to the moratorium imposed by Section 5521, and notwithstanding any other provision of law, it is unlawful to take abalone for commercial purposes in District 6, 7, 16, 17, or 19A, in District 10 north of Point Lobos, or in District 20 between Southeast Rock and the extreme westerly end of Santa Catalina Island. (b) There shall be a rebuttable presumption, affecting the burden of producing evidence, that a person who is required to obtain a license pursuant to Section 7145 and who takes or possesses more than 12 individual abalone possesses the abalone for commercial purposes. SEC. 2.1. Section 6432 of the Fish and Game Code is amended to read: 6432. The department shall work cooperatively with the State Lands Commission and the State Water Resources Control Board to implement the Ballast Water Management Program established pursuant to Division 36 (commencing with Section 71200) of the Public Resources Code. SEC. 2.2. Section 6433 of the Fish and Game Code is repealed. SEC. 2.3. Section 6434 of the Fish and Game Code is repealed. SEC. 2.4. Section 6435 of the Fish and Game Code is repealed. SEC. 2.5. Section 6436 of the Fish and Game Code is repealed. SEC. 2.6. Section 6437 of the Fish and Game Code is repealed. SEC. 2.7. Section 6438 of the Fish and Game Code is repealed. SEC. 2.8. Section 6439 of the Fish and Game Code is amended and renumbered to read: 6433. This article shall remain in effect only until January 1, 2004, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2004, deletes or extends that date. SEC. 2.9. Section 7072 of the Fish and Game Code is amended to read: 7072. (a) Fishery management plans shall form the primary basis for managing California's sport and commercial marine fisheries. (b) Fishery management plans shall be based on the best scientific information that is available, on other relevant information that the department possesses, or on such scientific information or other relevant information that can be obtained without substantially delaying the preparation of the plan. (c) To the extent that conservation and management measures in a fishery management plan either increase or restrict the overall harvest in a fishery, fishery management plans shall allocate those increases or restrictions fairly among recreational and commercial sectors participating in the fishery. (d) Consistent with Article 17 (commencing with Section 8585), the commission shall adopt a fishery management plan for the nearshore fishery on or before January 1, 2002, if funds are appropriated for that purpose in the annual Budget Act or pursuant to any other law. SEC. 3. Section 7655 of the Fish and Game Code is amended to read: 7655. (a) It is the policy of the State of California that the state be represented on the Pacific Fishery Management Council by representatives of those fisheries directly subject to the fishery management plans of the council. Special emphasis shall be made on the nominations and appointments to the Pacific Fishery Management Council for a California commercial salmon troll fisherman. In addition to a commercial salmon troll fisherman, in order to assure a balanced representation on the Pacific Fishery Management Council, nominations shall also include representatives from the seafood processing industry, the commercial passenger carrying fishing industry, the groundfish fishery, and the coastal pelagic species fishery. (b) When the Governor nominates persons for any seat on the Pacific Fishery Management Council, those individuals shall be knowledgeable of California's fishery resources and its fishing industry and needs. Further, the nominations shall be made after consultation with fishery organizations whose members are directly affected by the actions of the council. SEC. 4. Section 8022 of the Fish and Game Code is amended to read: 8022. (a) The receipts, reports, or other records filed with the department pursuant to Article 2 (commencing with Section 7700) to Article 7.5 (commencing with Section 8040), inclusive, and the information contained therein, shall, except as otherwise provided in this section, be confidential, and the records shall not be public records. Insofar as possible, the information contained in the records shall be compiled or published as summaries, so as not to disclose the individual record or business of any person. (b) Notwithstanding any other provision of law, the department may release the confidential information described in subdivision (a) to any federal agency responsible for fishery management activities, provided the information is used solely for the purposes of enforcing fishery management provisions and provided the information will otherwise remain confidential. The department may also release this information in accordance with Section 391 or pursuant to a court order. SEC. 4.5. Section 8101 of the Fish and Game Code is amended to read: 8101. (a) Any licensed fisherman shall be eligible for inclusion during the initial year of a limited entry fishery which is established by statute that becomes operative after January 1, 1982, or by regulation that becomes operative after January 1, 1999, regardless of the prescribed conditions for entry into the fishery, if the fisherman presents to the department satisfactory evidence that he or she has been licensed as a California commercial fisherman for at least 20 years and has participated in the fishery for at least one of those 20 years, with qualifying participation in the fishery to be determined by the commission based on landings or other appropriate criteria. (b) Fishermen who have established eligibility to participate in a limited entry fishery under this section are subject to conditions of continuing eligibility established by statute or regulation if those fishermen desire to maintain their eligibility. SEC. 5. Section 8150.5 of the Fish and Game Code is amended to read: 8150.5. (a) Sardines may not be taken or possessed on any boat, barge, or vessel except pursuant to Section 8150.7. (b) This section does not prohibit the possession or use of sardines imported into this state under a bill of lading identifying the country of origin. (c) Imported sardines may be used for dead bait under regulations adopted by the commission. SEC. 6. Section 8150.7 of the Fish and Game Code is amended to read: 8150.7. It is the intent of the Legislature that the sardine resource be managed with the objective of maximizing the sustained harvest. The department shall manage the sardine resource in conformance with the federal fishery regulations as recommended by the Pacific Fishery Management Council and as adopted by the Secretary of Commerce. SEC. 7. Section 8150.8 of the Fish and Game Code is repealed. SEC. 8. Section 8150.9 of the Fish and Game Code is repealed. SEC. 9. Section 8151 of the Fish and Game Code is repealed. SEC. 10. Section 8152 of the Fish and Game Code is repealed. SEC. 10.5. Section 8394.5 of the Fish and Game Code is amended to read: 8394.5. The fee for the permit issued pursuant to Section 8394 is three hundred thirty dollars ($330). This permit fee does not apply to the holder of a valid drift gill net shark and swordfish permit required under Article 16 (commencing with Section 8560) of Chapter 2. SEC. 11. Section 8410 of the Fish and Game Code is repealed. SEC. 12. Section 8411 of the Fish and Game Code is amended to read: 8411. The department shall manage the Pacific mackerel resource in conformance with the federal fishery regulations as recommended by the Pacific Fishery Management Council and as adopted by the Secretary of Commerce. SEC. 13. Section 8412 of the Fish and Game Code is amended to read: 8412. Pacific mackerel may be taken under a revocable nontransferable permit issued by the department to boat owners or operators under conditions prescribed by the department. SEC. 14. Section 8413 of the Fish and Game Code is repealed. SEC. 15. Section 8414 of the Fish and Game Code is repealed. SEC. 16. Section 8415 of the Fish and Game Code is repealed. SEC. 17. Section 8550.5 of the Fish and Game Code is amended to read: 8550.5. (a) A herring net permit granting the privilege to take herring with nets for commercial purposes shall be issued to licensed commercial fishermen, subject to regulations adopted under Section 8550, as follows: (1) To any resident of this state to use gill nets, upon payment of a fee of two hundred sixty-five dollars ($265). (2) To any nonresident to use gill nets, upon payment of a fee of one thousand dollars ($1,000). (b) The commission shall not require a permit for a person to be a crewmember on a vessel taking herring pursuant to this article. SEC. 18. Section 8552.8 of the Fish and Game Code is amended to read: 8552.8. (a) For purposes of this article, the experience points for a person engaged in the herring roe fishery shall be based on the number of years holding a commercial fishing license and the number of years having served as a crewmember in the herring roe fishery, and determined by the sum of both of the following: (1) One point for each year in the previous 12 years (prior to the current license year) that the person has held a commercial fishing license issued pursuant to Section 7852, not to exceed a maximum of 10 points. (2) Five points for one year of service as a paid crewmember in the herring roe fishery, as determined pursuant to Section 8559, three points for a second year of service as a paid crewmember, and two points for a third year as a paid crewmember, beginning with the 1978-79 herring fishing season, not to exceed a maximum of 10 points. (b) The department shall maintain a list of all individuals possessing the maximum of 20 experience points and of all those persons holding two points or more, grouped in a list by number of points. The list shall be maintained annually and shall be available from the department to all pointholders and to all herring permittees. All pointholders are responsible for providing the department with their current address and for verifying points credited to them by the department. (c) A herring permittee may use the department's list and rely upon that list in making offers for transfer of his or her permit until the date of the annual distribution of the new list. On and after the date of the annual revision of the list, the permittee shall use the new list. (d) The point provisions in this section are for purposes of sale of a permit or transfer to a partner of a coowned permit. SEC. 19. Section 8664.65 of the Fish and Game Code is repealed. SEC. 20. Section 11019 of the Fish and Game Code is amended to read: 11019. The following constitutes Fish and Game District 11: The waters and tidelands of San Francisco Bay to high-water mark bounded as follows: Beginning at the extreme westerly point of Point Bonita; thence in a direct line to the extreme westerly point of Point Lobos; thence around the shore line of San Francisco Bay to the foot of Powell Street; thence in a direct line northwesterly to Peninsula Point, the most southerly extremity of Belvedere Island; thence in a direct line westerly to the easternmost point of the ferry dock at Sausalito; thence southerly and westerly around the shore of San Francisco Bay to the point of beginning. SEC. 21. Section 12002.3 of the Fish and Game Code is amended to read: 12002.3. (a) Notwithstanding any other provision of law, a violation of Section 7121 for the sale, purchase, or receipt of fish taken by a person required to be licensed pursuant to Section 7145 is punishable by a fine of not less than two thousand dollars ($2,000) or more than seven thousand five hundred dollars ($7,500), except as provided in subdivisions (b) and (c). (b) If the violation in question involved the illegal sale or purchase of abalone taken by a person required to be licensed pursuant to Section 7145, the violation is punishable by a fine of not less than fifteen thousand dollars ($15,000) or more than forty thousand dollars ($40,000). (c) If the violation in question involved a person who knowingly purchased or received for commercial purposes, fish taken by a person required to be licensed pursuant to Section 7145, the violation is punishable by a fine of not less than seven thousand five hundred dollars ($7,500) or more than fifteen thousand dollars ($15,000). SEC. 22. Section 12006.6 of the Fish and Game Code is amended to read: 12006.6. Notwithstanding Section 12000 or 12002.8, and in addition to Section 12009, and notwithstanding the type of fishing license or permit held, if any person is convicted of a violation of Section 5521 or 5521.5, and the offense occurs in an area closed to the taking of abalone for commercial purposes, and the person takes or possesses more than 12 abalone at one time or more than 100 abalone during a calendar year, that person shall be punished by all of the following: (a) A fine of not less than fifteen thousand dollars ($15,000) or more than forty thousand dollars ($40,000). (b) The court shall order the department to permanently revoke, and the department shall permanently revoke, the commercial fishing license and any commercial fishing permits of that person. The person punished under this subdivision shall not, thereafter, be eligible for any license or permit to take or possess fish for sport or commercial purposes, including, but not limited to, a commercial fishing license or a sport fishing or sport ocean fishing license. Notwithstanding any other provision of law, the commercial license or permit of a person arrested for a violation punishable under this section may not be sold, transferred, loaned, leased, or used as security for any financial transaction until disposition of the charges is final. (c) Any vessel, diving or other fishing gear or apparatus, or vehicle used in the commission of an offense punishable under this section shall be seized, and shall be ordered forfeited in the same manner prescribed for nets or traps used in violation of this code, as described in Article 3 (commencing with Section 8630) of Chapter 3, or in the manner prescribed in Section 12157. (d) Not less than 50 percent of the revenue deposited in the Fish and Game Preservation Fund from fines and forfeitures collected pursuant to this section shall be allocated for the support of the Special Operations Unit of the Wildlife Protection Division of the department and used for law enforcement purposes. SEC. 23. Section 12009 of the Fish and Game Code is amended to read: 12009. (a) Notwithstanding Section 12000, and except as provided in Section 12006.6, the punishment for a violation of any provision of Section 5521 or 5521.5, or any regulation adopted pursuant thereto, or of Section 7121 involving abalone, is a fine of not less than fifteen thousand dollars ($15,000) or more than forty thousand dollars ($40,000) and imprisonment in the county jail for a period not to exceed one year. The court shall permanently revoke any commercial fishing license, commercial fishing permit, or sport fishing license issued by the department. Any vessel, diving or other fishing gear or apparatus, or vehicle used in the commission of an offense punishable under this section, may be seized and may be ordered forfeited by the court pursuant to subdivision (c) of Section 12157. Notwithstanding any other provision of law, the commercial license of any person arrested for a violation punishable under this section may not be sold, transferred, loaned, or leased, or used as security for any financial transaction until disposition of the charges is final. (b) Notwithstanding any other provision of law, the money collected from any fine or forfeiture imposed or collected for the taking of abalone for any purpose other than for profit in violation of this article or any other provision of law shall be deposited as follows: (1) One-half in the Abalone Restoration and Preservation Account. (2) One-half in the county treasury of the county in which the violation occurred. SEC. 24. Section 12157 of the Fish and Game Code is amended to read: 12157. (a) Except as provided in subdivision (b), the judge before whom any person is tried for a violation of any provision of this code, or regulation adopted pursuant thereto, may, upon the conviction of the person tried, order the forfeiture of any device or apparatus that is designed to be, or is capable of being, used to take birds, mammals, fish, reptiles, or amphibia and that was used in committing the offense charged. (b) The judge shall, if the offense is punishable under Section 12008 of this code or under subdivision (c) of Section 597 of the Penal Code, order the forfeiture of any device or apparatus that is used in committing the offense, including, but not limited to, any vehicle that is used or intended for use in delivering, importing, or exporting any unlawfully taken, imported, or purchased species. (c) (1) The judge may, for conviction of a violation of either of the following offenses, order forfeiture of any device or apparatus that is used in committing the offense, including, but not limited to, any vehicle used or intended for use in committing the offense: (A) Section 2000 relating to deer, elk, antelope, feral pigs, European wild boars, black bears, and brown or cinnamon bears. (B) Any offense that involves the sale, purchase, or possession of abalone for commercial purposes. (2) In considering an order of forfeiture under this subdivision, the court shall take into consideration the nature, circumstances, extent, and gravity of the prohibited act committed, the degree of culpability of the violator, the property proposed for forfeiture, and other criminal or civil penalties imposed on the violator under other provisions of law for that offense. The court shall impose lesser forfeiture penalties under this subdivision for those acts that have little significant effect upon natural resources or the property of another and greater forfeiture penalties for those acts that may cause serious injury to natural resources or the property of another, as determined by the court. In determining whether or not to order forfeiture of a vehicle, the court shall, in addition to any other relevant factor, consider whether the defendant is the owner of the vehicle and whether the owner of the vehicle had knowledge of the violation. (3) It is the intent of the Legislature that forfeiture not be ordered pursuant to this subdivision for minor or inadvertent violations of Section 2000, as determined by the court. (d) Any device or apparatus ordered forfeited shall be sold, used, or destroyed by the department. (e) (1) The proceeds from all sales under this section, after payment of any valid liens on the forfeited property, shall be paid into the Fish and Game Preservation Fund. (2) A lien in which the lienholder is a conspirator is not a valid lien for purposes of this subdivision. (f) The provisions in this section authorizing or requiring a judge to order the forfeiture of a device or apparatus also apply to the judge, referee, or traffic hearing officer in a juvenile court action brought under Section 258 of the Welfare and Institutions Code. (g) For purposes of this section, a plea of nolo contendere or no contest, or forfeiture of bail, constitutes a conviction. (h) Neither the disposition of the criminal action other than by conviction nor the discretionary refusal of the judge to order forfeiture upon conviction impairs the right of the department to commence proceedings to order the forfeiture of fish nets or traps pursuant to Section 8630. SEC. 25. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.