California Senate Bill SB1093 Amended / Bill

 BILL NUMBER: SB 1093AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 20, 2010 AMENDED IN ASSEMBLY AUGUST 2, 2010 AMENDED IN ASSEMBLY JULY 1, 2010 AMENDED IN ASSEMBLY JUNE 21, 2010 AMENDED IN SENATE APRIL 19, 2010 AMENDED IN SENATE APRIL 5, 2010 INTRODUCED BY Senator Wiggins FEBRUARY 17, 2010 An act to amend Sections 8276.2 and 8276.4 of, and to add Section 8276.5 to, the Fish and Game Code, relating to fish and game, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST SB 1093, as amended, Wiggins. Dungeness crab: pilot program. (1) Existing law establishes the Ocean Protection Council and requires the council to, among other things, coordinate activities of state agencies that are related to the protection and conservation of coastal waters and ocean ecosystems to improve the effectiveness of state efforts to protect ocean resources within existing fiscal limitations. Existing law requires the council to make a grant, upon appropriation of funding by the Legislature, for the development and administration of a Dungeness crab task force, and specifies the membership of the task force. Existing law requires the task force to cease to exist on January 1, 2011. This bill would extend that date to January 1, 2015. (2)  Existing   law establishes the Dungeness crab seasons for commercial purposes.  Existing law authorizes the Director of Fish and Game to authorize one or more operators of commercial fishing vessels to take and land a limited number of Dungeness crab in November of each year  for the purpose of quality testing according to a testing program and prohibits the sale of crab taken pursuant to the testing program, except for edible crab meat, which may be used for charitable purposes. This bill would instead allow the crab taken pursuant to the testing program to be sold  after the opening of the Dungeness crab season in specified districts  , provided the proceeds of the sale are allocated to legitimate costs of the testing program, or used for charitable purposes. (3) Existing law, until January 1, 2011, authorizes the placement of restrictions on a person's eligibility to take crab in state waters and offshore for commercial purposes. This bill would delete the sunset date for this authority, and would authorize the director  to institute   , in consultation with the task force, to develop  a pilot program for Dungeness crab trap limits for all California permits. The bill would require the pilot program to contain specified requirements  , and prohibit the pilot program from being implemented, modified, eliminated, or added to without at least   2/3   of the non ex officio members of the Dungeness crab task force voting in favor   ,   unless the director makes a specified finding. The bill would require the director to submit the proposed program to the task force for review and recommendations before implementing the program   . The bill would authorize the director to implement the program, except as specified, if the director makes a prescribed finding. The bill would require the director to submit a report that includes the finding and the provisions of the final program to the task force and to certain legislative committees. The bill would authorize the task force to recommend the delay of the implementation of the program by up to 18 months, under prescribed circumstances. The bill would establish a corresponding procedure for modifications to the implemented program  . (4) Existing law requires all money collected under the Fish and Game Code, or under any other law relating to the protection and preservation of birds, mammals, fish, reptiles, or amphibians, to be deposited into the Fish and Game Preservation Fund, unless otherwise provided. The bill would require trap tag fees collected pursuant to the pilot program to be deposited in the Dungeness Crab Account of the Fish and Game Preservation Fund, created by this bill, and moneys in the account would be continuously appropriated to the department for purposes of administering the pilot program. The bill would authorize the department to borrow money from the  General Fund   council  for purposes of meeting the necessary expenses of initial organization and operation of the pilot program. Vote: majority. Appropriation: yes. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 8276.2 of the Fish and Game Code is amended to read: 8276.2. (a) The director may order a delay in the opening of the Dungeness crab fishery after December 1 in Districts 6, 7, 8, and 9 in any year. The delay in the opening shall not be later than January 15 of any year. (b) On or about November 1 of each year, the director may authorize one or more operators of commercial fishing vessels to take and land a limited number of Dungeness crab for the purpose of quality testing according to a testing program conducted by, or on behalf of, the Pacific States Marine Fisheries Commission or an entity approved by the department. The department shall not approve a testing program unless it is funded by the entity authorized to conduct the testing program. Crab taken pursuant to this section may be sold  after the opening of the Dungeness crab season in Districts 6, 7, 8, and 9  , provided the proceeds of the sale are allocated to legitimate costs of the testing program as determined by the director, or used for charitable purposes. (c) The director shall order the opening of the Dungeness crab season in Districts 6, 7, 8, and 9 on December 1 if the quality tests authorized in subdivision (b) indicate the Dungeness crabs are not soft-shelled or low quality. The entity authorized to conduct the approved testing program may test, or cause to be tested, crabs taken for quality and soft shells pursuant to the approved testing program. If the tests are conducted on or about November 1 and result in a finding that Dungeness crabs are soft-shelled or low quality, the director shall authorize a second test to be conducted on or about November 15 pursuant to the approved testing program. If the second test results in a finding that Dungeness crabs are soft-shelled or low quality, the director may order the season opening delayed for a period of 15 days and may authorize a third test to be conducted on or about December 1. If the third test results in a finding that Dungeness crabs remain soft-shelled or of low quality, the director may order the season opening delayed for a period of an additional 15 days and authorize a fourth test to be conducted. This procedure may continue to be followed, except that no tests shall be conducted after January 1 for that season, and the season opening shall not be delayed by the director later than January 15. (d) This section shall become inoperative on April 1, 2012, and, as of January 1, 2013, is repealed, unless a later enacted statute that is enacted before January 1, 2013, deletes or extends the dates on which it becomes inoperative and is repealed. SEC. 2. Section 8276.4 of the Fish and Game Code is amended to read: 8276.4. (a) The Ocean Protection Council shall make a grant, upon appropriation of funding by the Legislature, for the development and administration of a Dungeness crab task force. The membership of the Dungeness crab task force shall be comprised of all of the following: (1) Two members representing sport fishing interests. (2) Two members representing crab processing interests. (3) One member representing commercial passenger fishing vessel interests. (4) Two ex officio members representing nongovernmental organization interests. (5) One ex officio representative of Sea Grant. (6) Two ex officio members representing the department. (7) Seventeen members representing commercial fishery interests, elected by licensed persons possessing valid Dungeness crab permits in their respective ports and production levels, as follows: (A) Four members from Crescent City. (B) One member from Trinidad. (C) Two members from Eureka. (D) Two members from Fort Bragg. (E) Two members from Bodega Bay. (F) Two members from San Francisco. (G) Two members from Half Moon Bay. (H) One member from ports south of Half Moon Bay. (I) One member who has a valid California nonresident crab permit. (b) For ports with more than one representative, elected members and their alternates shall represent both the upper and lower, and in some cases middle, production levels. Production levels shall be based on the average landing during the previous five years, of valid crab permitholders who landed a minimum of 25,000 pounds of crab during the same period. (c) The Dungeness crab task force shall do all of the following: (1) Under the guidance of a professional facilitator hired by the Ocean Protection Council for this purpose, review and evaluate Dungeness crab management measures with the objective of making recommendations to the Joint Committee on Fisheries and Aquaculture, the department, and the commission no later than January 15, 2010. (2) Make recommendations, including, but not limited to, the need for a permanent Dungeness crab advisory committee, refining sport and commercial Dungeness crab management, establishing a Dungeness crab marketing commission, and the need for statutory changes to accomplish task force objectives. (3) In considering Dungeness crab management options, prioritize the review of pot limit restriction options, harvest allocation, current and future sport and commercial fishery effort, season modifications, essential fishery information needs, and short- and long-term objectives for improved management. (d) The task force may establish subcommittees of specific user groups from the task force membership to focus on issues specific to sport fishing, commercial harvest, or crab processing. The subcommittees shall report their recommendations, if any, to the task force. (e) The Ocean Protection Council may include in a grant funding to cover department staffing costs, as well as task force participant travel. (f) A recommendation shall be forwarded to the Joint Committee on Fisheries and Aquaculture, the department, and the commission upon an affirmative vote of at least two-thirds of the task force members. (g) The task force shall cease to exist on January 1, 2015. (h) Eligibility to take crab in state waters and offshore for commercial purposes may be subject to restrictions, including, but not limited to, restrictions on the number of traps utilized by that person, if any of the following occur: (1) A person holds a California Dungeness crab permit with California landings of less than 5,000 pounds between November 15, 2003, and July 15, 2008, inclusive, as reported in California landings receipts. (2) A person has purchased a California Dungeness crab permit on or after July 15, 2008, from a permitholder whose California landings were less than 5,000 pounds between November 15, 2003, and July 15, 2008, inclusive, as reported in California landings receipts. (3) The director institutes a pilot program for Dungeness crab trap limits pursuant to Section 8276.5. SEC. 3. Section 8276.5 is added to the Fish and Game Code, to read: 8276.5. (a) In accordance with paragraph (1) of subdivision  (b), the director may institute a pilot program for Dungeness crab  (b), in consultation with the Dungeness crab task force, or its appointed representatives, the director may develop a pilot program for Dungeness crab  trap limits for all California permits.  Except as provided in paragraph (2) of subdivision (b), the pilot program   Unless the director finds that   there is consensus in the Dungeness crab i   ndustry that modifications to the following requirements are more desirable, with evidence of consensus, including, but not limited to, the record of the Dungeness crab task force, the pilot program  shall include all of the following requirements: (1) The program shall contain seven tiers of Dungeness crab trap limits based on California landings receipts under California permits between November 15, 2003, and July 15, 2008, as follows: (A) The 55 California permits with the highest California landings shall receive a maximum allocation of 500 trap tags. (B) The 55 California permits with the next highest California landings to those in subparagraph (A) shall receive a maximum allocation of 450 trap tags. (C) The 55 California permits with the next highest California landings to those in subparagraph (B) shall receive a maximum allocation of 400 trap tags. (D) The 55 California permits with the next  highes Californiat   highest California  landings to those in subparagraph (C) shall receive a maximum allocation of 350 trap tags. (E) The 55 California permits with the next highest California landings to those in subparagraph (D) shall receive a maximum allocation of 300 trap tags. (F) The remaining California permits with the next highest California landings to those in subparagraph (E), which are not described in paragraph (1) or (2) of subdivision (h) of Section 8276.4, shall receive a maximum allocation of 250 trap tags. (G) The California permits described in paragraphs (1) and (2) of subdivision (h) of Section 8276.4 shall receive a maximum allocation of 175 trap tags. (2) The department shall do either or both of the following: (A) Obtain new funding to cover the costs of the pilot program from the council or other funding sources. (B) Collect a fee for each trap tag issued pursuant to paragraph (1) that covers the pro rata share of costs of the pilot program, including, but not limited to, informing permitholders of the program, collecting the fees, acquiring and sending trap tags to  permitholders, and monitoring the results of the program.   permitholders, paying for a portion of enforcement costs, and monitoring the results of the program. The fee shall not exceed two dollars ($2) per trap per year. In order to reduce the cost of buying and distributing tags, and to increase the amount of the proceeds of the sale of tags that are available for enforcement or other costs, the director may require that tags be used for two years. The cost of a two-year tag shall not exceed four dollars ($4). All of the trap tags allocated to each permit pursuant to subdivision (a) shall be purchased by the permitholder or the permit shall be void.  (3) An  Individual   individual  may appeal a trap tag allocation received pursuant to paragraph (1) to the director on a permit-by-permit basis for the purpose of revising upward or downward any trap tag allocation based on evidence that a permit's California landings during the period between November 15, 2003, and July 15, 2008, inclusive, were reduced as a result of unusual circumstances and that these circumstances constitute an unfair hardship, taking into account the overall California landings history as indicated by landing receipts associated with the permit. The director shall initiate the appeal process within 12 months of receiving an appeal request. The appeal shall be heard and decided by an administrative law judge of the Office of Administrative Hearings, whose decision shall constitute the final administrative decision. An individual requesting an appeal shall pay all expenses associated with the appeal process described in this paragraph. (4)  The   Unless   the director finds that there is consensus in the crab industry that a longer period is desirable, with evidence of consensus, including, but not limited to, the record of the Dungeness crab task force, the  director shall not institute a pilot program for Dungeness crab trap tags for a period longer than  3 years unless a longer period is authorized by a two-thirds vote of the non ex officio members of the Dungeness crab task force.   three years.   (5) Unless new funding is made available specifically for enforcement of the pilot program, the department shall not be required to expend more time or funds on the enforcement of the pilot program than is normally accorded to the crab fishery.   (6)   (5)  A Dungeness crab trap that is fished shall contain a trap tag that is fastened to the first buoy.  (7)   (6)  The director shall impose penalties and fines for noncompliance with the requirements of the pilot program  in an amount sufficient to discourage noncompliance. The portion of monetary judgments for  noncompliance that are paid to the department shall be deposited in the Dungeness Crab Account established in subdivision (c)  .  (8)   (7)  With assistance from the council, and if funding is available, the department shall report on the results of the pilot program.  The Dungeness crab task force may periodically evaluate the impacts of the program and recommend changes to the director, who may modify its provisions in accordance with paragraph (2) of subdivision (b).   (8) For the purposes of this section, a proposed recommendation that receives an affirmative vote of at least 15 of the non-ex officio members may be transmitted by the Dungeness crab task force to the director or the Legislature as a recommendation, shall be considered to be the consensus of the task force, and shall be considered to be evidence of consensus in the Dungeness crab industry. Any proposed recommendation that does not receive a vote sufficient to authorize transmittal to the director or Legislature as a recommendation shall be evidence of a lack of consensus by the Dungeness crab task force, and shall be considered to be evidence of a lack of consensus in the crab industry.   (b) (1) Prior to implementing the pilot program, the director, with the assistance of the council, shall seek the concurrence of the Dungeness crab task force. The program shall not be implemented without at least two-thirds of the non ex officio members of the Dungeness crab task force voting in favor of concurrence. Dungeness crab task force nonconcurrence may be based on any factor or factors the task force considers significant, including, but not limited to, the amount of the proposed fee collected pursuant to subparagraph (B) of paragraph (2) of subdivision (a).   (2) The pilot program shall not be modified, eliminated, or added to without the concurrence of at least two-thirds of the non ex officio members of the Dungeness crab task force voting in favor.   (b) (1) (A) The director shall submit the proposed program to the Dungeness crab task force for review, and shall not implement the program until the task force has had 60 days or more to review the proposed program and recommend any proposed changes. The director may implement the program earlier than 60 days after it is submitted to the Dungeness crab task force for review, if recommended by the task force.   (B) After the Dungeness crab task force has reviewed the proposed program, the director may implement the program, subject to any delay pursuant to subparagraph (D), if the director finds that the program represents the consensus view of the crab fishing industry.   (C) The director shall submit a report that includes the finding pursuant to subparagraph (B) and the provisions of the final program to the Dungeness crab task force and to the Senate Committee on Natural Resources and the Assembly Committee on Water, Parks and Wildlife.   (D) If, upon receipt of the report, the Dungeness crab task force disagrees with the finding made pursuant to subparagraph (B), the task force may recommend the delay of the implementation of the program by up to 18 months, by an affirmative vote at least 15 of the non-ex officio members, and shall notify, within 60 days of receipt of the report, the director, the Senate Committee on Natural Resources, and the Assembly Committee on Water, Parks and Wildlife of its recommendation. The director shall delay implementation in accordance with the recommendation of the Dungeness crab task force, and may thereafter implement the program. The Dungeness crab task force may vote to rescind a delay recommendation pursuant to this subparagraph.   (E) The requirement for submitting a report imposed under subparagraph (C) is inoperative four years after the report is due, pursuant to Section 10231.5 of the Government Code, and the report shall be submitted in compliance with Section 9795 of the Government Code.   (2) (A) If the program is implemented pursuant to paragraph (1), the director may modify or eliminate the program, after consultation with the Dungeness crab task force or its representatives, after the task force has had 60 days or more to review the proposed modifications and recommend any proposed changes. The director may implement the modifications earlier than 60 days after it is sent to the Dungeness crab task force for review, if recommended by the task force.   (B) After the Dungeness Crab Task Force has reviewed the modifications, the director may implement any proposed changes, subject to any delay pursuant to subparagraph (D), if the director finds that the proposed changes represent the consensus in the crab fishing industry.   (C) The director shall submit a report that includes the finding pursuant to subparagraph (B) and the proposed changes to the Dungeness crab task force and to the Senate Committee on Natural Resources and the Assembly Committee on Water, Parks and Wildlife.   (D) If, upon receipt of the report, the Dungeness crab task force disagrees with the finding made pursuant to subparagraph (B), the task force may recommend the delay of the implementation of the proposed modifications by up to 18 months, by an affirmative vote of at least 15 of the non-ex officio members, and shall notify, within 60 days of receipt of the report, the director, the Senate Committee on Natural Resources, and the Assembly Committee on Water, Parks and Wildlife of its recommendation. The director shall delay modifications in accordance with the recommendation of the Dungeness crab task force, and may thereafter implement the modifications. The Dungeness crab task force may vote to rescind a delay recommendation pursuant to this subparagraph.   (E) The requirement for submitting a report imposed under subparagraph (C) is inoperative four years after the report is due, pursuant to Section 10231.5 of the Government Code, and the report shall be submitted in compliance with Section 9795 of the Government Code.   (3) For the purposes of this subdivision, evidence of consensus in the crab fishing industry includes, but is not limited to, the voting record of the Dungeness crab task force.  (c) The Dungeness Crab Account is hereby established in the Fish and Game Preservation Fund and the fees collected pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall be deposited in that account. Notwithstanding Section 13340 of the Government Code, the money in the account is continuously appropriated, without regard to fiscal years, to the department for purposes of administering  and enforcing  the pilot program. (d) If the director implements a pilot program, for purposes of meeting the necessary expenses of initial organization and operation of the pilot program until fees may be collected pursuant to subparagraph (B) of paragraph (2) of subdivision (a), or other funding sources may be received, the department may borrow money as needed for these expenses from the  General Fund in the State Treasury. The borrowed money shall be repaid with interest   council. The borrowed money shall be repaid  within one year from the fees collected, or other funding sources received, as provided in this section.  The council shall give high   priority to providing funds or services to the department, in addition to loans, to assist in the development of the pilot program, including, but not limited to, the costs of convening the Dungeness crab task force, environmental review, and the department's costs of attending meetings with task force members.  (e) (1) It is the intent of the Legislature that the department, the council, and the Dungeness crab task force work with the Pacific States Marine Fisheries Commission and the Tri-state Dungeness Crab Commission to  move   evaluate moving  the fair start line south to the border of California and Mexico.  (2) For purposes of this subdivision, "fair start line" means the boundary line of a specific region fishing vessels are required to commit to fishing for a period of time prior to being able to leave that region to go fish another area.   (2) For the purposes of this subdivision, the evaluation of the fair start line shall be limited to assessing the positive and negative implications of including District 10 in the tri-state agreement, including working with the Tri-state Dungeness Crab Commission to amend Oregon and Washington laws to include District 10 in the regular season fair start clause, and discussion of providing different rules for District 10 with regard to preseason quality testing.  (f) For purposes of this section, "council" means the Ocean Protection Council established pursuant to Section 35600 of the Public Resources Code.