BILL NUMBER: AB 489 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 14, 2009
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 amend
and repeal Section 8051 of, to amend, repeal, and add Section 8042
of, and to add Section 8041.5 to, to repeal Section
8051 of, and to repeal and add Section 8042 of, the Fish
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 , on January 1, 2011, would delete
repeal 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 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,
(c) Based on a 2007 memorandum from the
Department of Fish and Game to the Fish and Game Commission,
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 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 Fees
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) "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 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 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 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 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. 6. Section 8042 of the Fish and Game Code
is repealed.
SEC. 6. Section 8042 of the Fish and
Game Code is amended to read:
8042. (a) The amount of the landing tax
under this article shall be determined by multiplying the tax rate
for the type of fish delivered by a commercial fisherman in this
state in accordance with the schedule in Section 8051 by the number
of pounds, or fraction thereof, delivered. If the tax is imposed
based upon weight in the round, and the fish is cleaned, gutted,
beheaded, or otherwise not in the round at the time of delivery, the
taxes shall be adjusted by a conversion factor as determined by the
department by regulation.
(b) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 7. Section 8042 is added to the Fish and Game Code, to read:
8042. (a) The amount of the landing fee under this article shall
be a percentage of the average ex-vessel price per pound for that
species.
(b) The landing 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 of
fish.
(2) Beginning January 1, 2013, the percentage shall be 3 percent
of the average ex-vessel price for any species of fish.
(c) The commission shall establish the average ex-vessel price for
each species 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).
(e) This section shall become operative on January 1, 2011.
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 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. 9. Section 8051 of the Fish and Game Code
is repealed.
SEC. 9. Section 8051 of the Fish and
Game Code is amended to read:
8051. (a) The landing tax imposed pursuant to Section 8041 shall
be determined pursuant to Section 8042 by using the tax rates in the
following schedule:
Rate per
pound
(1) All fish, except as otherwise
specified in this sec-
tion.............................. $0.0013
(2) Mollusks and crustaceans,
excluding squid and
crab.............................. .0125
(3) Crab.......................... .0019
(4) Squid......................... .0019
(5) Salmon, based only on the .0500
weight in the round
(6) Lobster....................... .0125
(7) Abalone....................... .0125
(8) Anchovies..................... .0013
(9) Sardines...................... .0063
(10) Mackerel..................... .0013
(11) Halibut...................... .0125
(12) Angel shark, based only on
the weight in the
round............................ .0113
(13) Swordfish, based only on the
weight in the
round............................ .0125
(14) Thresher shark, based only
on the weight in the
round............................ .0113
(15) Bonito shark, based only on
the weight in the
round............................ .0113
(16) Herring...................... .0013
(17) Sea urchin................... .0013
(18) The following fish:.......... .0125
Barracuda
Flying fish
Frogs
Giant sea bass
Saltwater worms
White sea bass
Yellowtail
(b) This section shall become operative on January 1, 1994.
(b) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 10. Section 8052 of the Fish and Game Code is amended to
read:
8052. Landing 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 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 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. (a) Landing fees imposed by this article shall be paid
quarterly to the department within 30 days after the close of each
quarter.
(b) If any landing 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 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 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 fees imposed by
this article, the 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 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 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 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 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
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 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
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 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 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 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. 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 rates as provided in Section 8042.
(b) The price per pound shall be based on the whole product weight
or its equivalent as taken by the lessee.
(c) The 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.