BILL NUMBER: AB 489 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 18, 2009
AMENDED IN ASSEMBLY APRIL 20, 2009
INTRODUCED BY Assembly Member Huffman
FEBRUARY 24, 2009
An act to amend Sections 8040 , 8041, 8047, 8052, 8053, 8055,
8057, 8058, 8059, 8060, 8061, 8062, 8063, 8064, 8065, 8067, 8068,
and 15003 of, to amend the heading of Article 7.5
(commencing with Section 8040) of Chapter 1 of Part 3 of Division 6
of, to add Section 8041.5 to, to repeal Section 8051 of, and to
repeal and add Section 8042 of, the Fish and Game Code, relating to
commercial fishing.
LEGISLATIVE COUNSEL'S DIGEST
AB 489, as amended, Huffman. Commercial fishing.
Existing law regulating commercial fishing imposes, or authorizes
the imposition of, various license, permit, and registration fees.
Existing law requires specified persons to pay commercial fishing
fees , referred to as a "landing tax," calculated on the
total weight of fish delivered, based on a rate-per-pound schedule
applicable to specified aquatic species.
This bill would delete that fee requirement and that rate
schedule, and, instead, impose a fee calculated as a set percentage
of the average ex-vessel price, as defined, established by the Fish
and Game Commission for a species or complex of
fish. The bill would require the fees to be used by
the department for the commercial fishing program pursuant to
specified provisions of law. The bill would make conforming changes
to refer to the fee as a "landing fee" instead of a "landing tax."
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The Department of Fish and Game is responsible for managing
and protecting the state fisheries resources. As part of that
responsibility the department regulates, manages, and oversees
commercial fishing.
(b) The Department of Fish and Game receives revenue to fund
regulation, management, and oversight of commercial fishing in the
form of permit fees, licenses, stamps, landing taxes, and the General
Fund.
(c) Based on a 2005 report by the Department of Fish and Game, the
revenue received from the commercial fishing industry covers only 22
percent of the program costs. The report indicates that the
ex-vessel value of commercial fish landed in 2005 was approximately
$109 million and the landing tax revenue to the state equaled only
one percent or $1 million.
(d) In order to more equitably distribute the financial burden on
the commercial fishing industry and generate additional revenue to
fund the regulation, management, and oversight of commercial fishing,
it is the intent that a commercial landing tax
fee in California should be established, based on the
ex-vessel value of the fish, as done in Washington and Oregon.
SEC. 2. The heading of Article 7.5 (commencing
with Section 8040) of Chapter 1 of Part 3 of Division 6 of the
Fish and Game Code is amended to read:
Article 7.5. Landing Taxes Fees
SEC. 2. SEC. 3. Section 8040 of the
Fish and Game Code is amended to read:
8040. The following definitions govern the construction of this
article.
(a) "Commercial fisherman" means a person who has a valid,
unrevoked commercial fishing license issued pursuant to Section 7850.
(b) "Landing tax" means a privilege tax imposed pursuant to this
article.
(c)
(b) "Ex-vessel price" means the price paid for fish at
the time the fish are delivered by the commercial fisherman to the
fish receiver or processor as described in Section 8041.
(c) "Landing fee" means a fee imposed on a fish receiver or
processor, as described in Section 8041, based on the ex-vessel price
for fish.
SEC. 4. Section 8041 of the Fish and
Game Code is amended to read:
8041. (a) The following persons shall pay the landing
tax fee determined pursuant to Section 8042:
(1) Any person who is required to be licensed as a fish receiver,
and any person who is licensed before January 1, 1987, as a
wholesaler or a processor pursuant to former Section 8040 and who
receives fish from commercial fishermen.
(2) Any commercial fisherman who sells fish to any person who is
not a licensed fish receiver.
(b) Notwithstanding subdivision (a), a person licensed pursuant to
Section 8460 who only takes, transports, or sells live freshwater
fish for bait or a commercial fisherman who sells live freshwater
fish for bait to such a licensed person, and a person licensed
pursuant to Section 8033.1 who takes, transports, or sells live
aquaria fish as described in Section 8597 or a commercial fisherman
who sells live aquaria fish, are exempt from the landing tax
fee imposed under this article. It is the
intent of the Legislature that the license fee for live aquaria fish
described in Section 8033.1 shall be in lieu of a landing
tax fee imposed under this article .
(c) Notwithstanding subdivision (a), a person who purchases,
sells, takes, or receives live marine fish for use as live bait as
described in subdivision (g) of Section 8030 is exempt from the
landing tax fee imposed under this
article.
SEC. 5. Section 8041.5 is added to the
Fish and Game Code , to read:
8041.5. On or before January 1, 2012, the department shall report
to the Joint Legislative Budget Committee and to the Joint Committee
on Fisheries and Aquaculture all of the following:
(a) A summary of state regulations related to imported fish and
shellfish products sold in the state that are not subject to the
commercial landing fee imposed under this article, and an estimate of
the department's annual costs to enforce those regulations.
(b) An estimate of the landing fee that would need to be assessed
on imported fish and shellfish products sold in the state that are
not subject to the commercial landing fee imposed under this article,
to cover the department's costs identified in subdivision (a).
SEC. 3. SEC. 6. Section 8042 of the
Fish and Game Code is repealed.
SEC. 4. SEC. 7. Section 8042 is added
to the Fish and Game Code, to read:
8042. (a) The amount of the landing tax
fee under this article shall be a percentage of the average
ex-vessel price per pound for that species or
complex of fish. As used in this section, "complex of fish" means a
group of fish species managed under the same federal or state fishery
management plan. .
(b) The landing tax fee shall be set
as follows:
(1) Beginning January 1, 2011, the percentage shall be 1 and
one-half percent of the average ex-vessel price for any species
or complex of fish.
(2) Beginning January 1, 2013, the percentage shall be 3 percent
of the average ex-vessel price for any species or complex
of fish.
(c) The commission shall establish the average ex-vessel price for
each species or complex of fish for the purpose
of this section based on the prior year statewide average ex-vessel
price.
(d) The revenue from commercial fishing landing fees imposed under
this article shall be used by the department for the commercial
fishing program pursuant to this part and Part 1.7 (commencing with
Section 7050).
SEC. 8. Section 8047 of the Fish and
Game Code is amended to read:
8047. (a) (1) A person licensed under Article 7 (commencing with
Section 8030) who takes his or her own fish shall make a legible
record in the form of the landing receipt as required by Sections
8043 and 8043.1 at the time the fish are brought ashore. The original
signed copy of the landing receipt shall be delivered by the
licensee to the department on or before the 16th day or the last day
of the month in which the fish were landed, whichever date occurs
first after landing. A copy of the landing receipt shall be retained
by the licensee for a period of four years and shall be available for
inspection at any time within that period by the department. A copy
of the landing receipt shall be delivered to an agent authorized in
writing by the majority of the persons who participated in the taking
of the fish, excluding the commercial fisherman receiving the
original copy.
(2) A person licensed under Section 8033.5 who sells his or her
fish to a licensed receiver may use a transportation receipt to
transport those fish only to that licensed receiver. The receiver
shall complete a landing receipt for those fish. A person who sells
his or her fish to the ultimate consumer shall complete a landing
receipt pursuant to Sections 8043 and 8043.2. Transportation receipts
shall be completed at the time the fish are transferred from the
fishing vessel.
(b) Every commercial fisherman who sells fish taken from the
waters of this state or brought into this state in fresh condition to
persons not licensed to receive fish for commercial purposes
pursuant to Article 7 (commencing with Section 8030) shall make a
legible record in the form of the landing receipt required by
Sections 8043 and 8043.1. Persons subject to Section 8043 shall remit
the landing tax fee imposed by Section
8041. The person taking, purchasing, or receiving the fish, whether
or not licensed under Article 7 (commencing with Section 8030), shall
sign the landing receipt. The original signed copy of the landing
receipt shall be delivered by the commercial fisherman to the
department on or before the first and 16th day of each month. A copy
of the landing receipt shall be retained by the commercial fisherman
for a period of four years and shall be available for inspection at
any time within that period by the department. A copy of the landing
receipt shall be retained by the person taking, purchasing, or
receiving the fish until they are prepared for consumption or
otherwise disposed of. A copy of the landing receipt shall be
delivered to an agent authorized in writing by the majority of the
persons who participated in the taking of the fish, excluding the
commercial fisherman receiving the original copy.
(c) (1) Every commercial fisherman or his or her designee, who
transports, causes to be transported, or delivers to another person
for transportation, any fish, except herring, taken from the waters
of this state or brought into this state in fresh condition, shall
fill out a transportation receipt according to the instructions and
on forms provided by the department at the time the fish are brought
ashore.
(2) The original signed copy of the transportation receipt shall
be delivered by the commercial fisherman to the department on or
before the 16th day or the last day of the month in which the fish
were landed, whichever date occurs first after landing. A copy of the
transportation receipt shall be retained by the commercial fisherman
who filled it out for a period of four years and shall be available
for inspection at any time within that period by the department. A
copy of the transportation receipt shall be given to and retained by
the person transporting the fish until the fish are sold fresh,
processed, or otherwise disposed of.
(3) The transportation receipt is required only for transit
purposes.
(4) A person transporting fish from the point of first landing
under a transportation receipt is not required to be licensed to
conduct the activities of a fish receiver as described in Section
8033.
(5) The transportation book receipt shall be issued to an
individual fisherman and is not transferable.
(d) The transportation receipt shall contain all of the following
information:
(1) The name of each species of fish, pursuant to Section 8045.
(2) The date and time of the receipt.
(3) The accurate weight of the species of fish being transported.
Sablefish may be reported in dressed weight, and if so reported,
shall have the round weights computed, for purposes of management
quotas, by multiplying 1.6 times the reported dressed weight.
(4) The name and identification number of the fisherman. The
signature of the fisherman authorizing transportation.
(5) The name of the person transporting the fish.
(6) The name of the fish business, the fish business
identification number, and the corresponding landing receipt number
issued by the fish business to the commercial fisherman.
(7) The department registration number of the vessel and the name
of the vessel.
(8) The department origin block number where the fish were caught.
(9) The port of first landing.
(10) Any other information the department may prescribe.
(e) The numbered transportation receipt forms in each individual
transportation receipt book shall be completed sequentially. A voided
fish transportation receipt shall have the word "VOID" plainly and
noticeably written on the face of the receipt. A voided fish
transportation receipt shall be submitted to the department in the
same manner as a completed fish transportation receipt is submitted
to the department. A commercial fisherman who is no longer conducting
business as a licensed fisherman shall forward all unused
transportation receipts and transportation receipt books to the
department immediately upon terminating his or her business activity.
SEC. 5. SEC. 9. Section 8051 of the
Fish and Game Code is repealed.
SEC. 10. Section 8052 of the Fish and
Game Code is amended to read:
8052. Landing taxes fees shall be
used only for the administration of laws relating to the commercial
fishing industry pursuant to this part and Part 1.7 (commencing
with Section 7050) , except as follows:
(a) Not less than 90 percent of the landing tax
fee on herring taken for roe shall be expended for
research and management activities to maintain and enhance the
herring resources within the waters of this state.
(b) Not less than 90 percent of the landing tax
fee on thresher shark or bonito (mako) shark shall be
expended for the study required by, and for the costs of
administering, Article 16 (commencing with Section 8560) of Chapter
2.
SEC. 11. Section 8053 of the Fish and
Game Code is amended to read:
8053. Landing taxes (a)
Landing fees imposed by this article shall be paid
quarterly to the department within 30 days after the close of each
quarter.
If
(b) If any landing tax
fee is not paid within 30 days after the close
of the quarter for which it is due, the department shall collect
amounts owing under the procedures prescribed for sales and use taxes
provided in Chapter 5 (commencing with Section 6451) and Chapter 6
(commencing with Section 6701) of Part 1 of Division 2 of the Revenue
and Taxation Code, insofar as they may be applicable, and for those
purposes, "board" means the department and "the date on which the tax
became due and payable" means that date 30 days after the close of
the quarter for which it is due.
SEC. 12. Section 8055 of the Fish and
Game Code is amended to read:
8055. All moneys received as a privilege tax
landing fee from persons who receive salmon from
commercial fishermen under the provisions of this article shall
be used only for the purpose of propagating salmon.
SEC. 13. Section 8057 of the Fish and
Game Code is amended to read:
8057. If the department determines that any tax
fee or penalty has been paid more than once or
has been erroneously or illegally collected or computed, the
department shall set forth that fact in the records of the
department. The excess amount collected or paid shall be credited on
any amounts then due and payable from the person under this part, and
the balance shall be refunded to the person, or his successors,
administrators, or executors.
SEC. 14. Section 8058 of the Fish and
Game Code is amended to read:
8058. In the event of overpayment of any of the taxes
fees imposed by this article, the
taxpayer feepayer may file a claim for refund or
a claim for credit with the department. No refund or credit shall be
approved by the department unless the claim therefor
is filed with the department within six months after the
close of the calendar year in which the overpayment was made.
SEC. 15. Section 8059 of the Fish and
Game Code is amended to read:
8059. Every claim for refund or credit for overpayment of a
landing tax fee shall be in writing and
shall state the specific grounds upon which the claim is founded.
SEC. 16. Section 8060 of the
Fish and Game Code is amended to read:
8060. Failure to file a claim for refund or credit within the
time prescribed in this article constitutes a waiver of any demand
against the state on account of overpayment of a landing tax
or taxes fee .
SEC. 17. Section 8061 of the Fish and
Game Code is amended to read:
8061. Within 30 days after disallowing any claim for refund or
credit for overpayment of a landing tax fee
in whole or in part, the department shall serve notice of its
action on the claimant, either personally or by mail. If served by
mail, service shall be made pursuant to Section 1013 of the Code of
Civil Procedure and shall be addressed to the licensee at his address
as it appears in the records of the department, but the service
shall be deemed complete at the time of the deposit of the notice in
the mail without extension of time for any reason.
SEC. 18. Section 8062 of the Fish and
Game Code is amended to read:
8062. Interest shall be paid upon any overpayment of a landing
tax fee at the rate of one-half of 1
percent per month from the date of overpayment. The interest shall be
paid to the date the claim for refund or credit is approved by the
department.
SEC. 19. Section 8063 of the Fish and
Game Code is amended to read:
8063. If the department determines that any overpayment of a
landing tax fee has been made
intentionally or by reason of carelessness, it shall not allow any
interest thereon.
SEC. 20. Section 8064 of the Fish and
Game Code is amended to read:
8064. No injunction or writ of mandate or other legal or
equitable process shall issue in any suit, action, or proceeding in
any court against this state or against any officer of the state to
prevent or enjoin the collection under this article of any landing
tax fee .
SEC. 21. Section 8065 of the Fish and
Game Code is amended to read:
8065. No suit or proceeding shall be maintained in any court for
the recovery of any amount of landing tax fee
alleged to have been erroneously paid or erroneously or
illegally determined or collected unless a claim for refund or credit
has been duly filed pursuant to Sections 8058 and 8059.
SEC. 22. Section 8067 of the Fish and
Game Code is amended to read:
8067. If the department fails to mail notice of action on a claim
for refund or credit for overpayment of a landing tax
fee within six months after the claim is filed,
the claimant may, prior to the mailing of notice by the department of
its action on the claim, consider the claim disallowed and bring an
action against the department on the grounds set forth in the claim
for the recovery of the whole or any part of the amount claimed as an
overpayment.
SEC. 23. Section 8068 of the Fish and
Game Code is amended to read:
8068. If judgment is rendered for the plaintiff, the amount of
the judgment shall first be credited on any landing tax
fee due and payable from the plaintiff to the
state under this article. The balance of the judgment shall be
refunded to the plaintiff.
SEC. 6. SEC. 24. Section 15003 of
the Fish and Game Code is amended to read:
15003. (a) The department may assess a fee on persons growing
aquaculture products on public lands and in public waters based on
the price per pound of the products sold. The fees, if imposed, shall
be set at amounts necessary to defray the costs of the commission
and the department in administering this division. However, the fees
if any, shall not exceed the tax rates as provided
in Section 8042.
(b) The price per pound for these taxation purposes
shall be based on the whole product weight or its
equivalent as taken by the lessee.
(c) The privilege tax fee imposed by
this section shall be paid monthly to the department within 30 days
after the close of each month. If not paid within 60 days after the
close of the month in which it is due, a 10 percent penalty shall be
paid.