Loading (50 kb)...'
(continued) und 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.
8059. Every claim for refund or credit for overpayment of a landing
tax shall be in writing and shall state the specific grounds upon
which the claim is founded.
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.
8061. Within 30 days after disallowing any claim for refund or
credit for overpayment of a landing tax 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.
8062. Interest shall be paid upon any overpayment of a landing tax
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.
8063. If the department determines that any overpayment of a
landing tax has been made intentionally or by reason of carelessness,
it shall not allow any interest thereon.
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.
8065. No suit or proceeding shall be maintained in any court for
the recovery of any amount of landing tax 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.
8066. Within 90 days after the mailing of the notice of the
department's action upon a claim filed pursuant to Sections 8058 and
8059, the claimant may bring an action against the department on the
grounds set forth in the claim in a court of competent jurisdiction
in any city or city and county of this State in which the Attorney
General has an office for the recovery of the whole or any part of
the amount with respect to which the claim has been disallowed.
Failure to bring action within the time specified constitutes a
waiver of any demand against the State on account of alleged
overpayments.
8067. If the department fails to mail notice of action on a claim
for refund or credit for overpayment of a landing tax 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.
8068. If judgment is rendered for the plaintiff, the amount of the
judgment shall first be credited on any landing tax due and payable
from the plaintiff to the state under this article. The balance of
the judgment shall be refunded to the plaintiff.
8069. In any judgment, interest shall be allowed at the legal rate
of interest on unsatisfied judgments, as provided in Section 685.010
of the Code of Civil Procedure, upon the amount found to have been
illegally collected from the date of payment of the amount to the
date of allowance of credit on account of the judgment or to a date
preceding the date of the refund warrant by not more than 30 days,
the date to be determined by the department.
8070. A judgment shall not be rendered in favor of the plaintiff in
any action brought against the department to recover any amount paid
when the action is brought by or in the name of an assignee of the
person paying the amount or by any person other than the person who
paid the amount.
8075. The commission may grant a permit, subject to such
regulations as it may prescribe, to take and use fish by a reduction
or extraction process.
8076. No reduction of fish shall be permitted which may tend to
deplete the species, or result in waste or deterioration of fish.
8077. No permit shall be issued except after a public hearing and a
finding by the commission that the granting thereof would promote
the economic utilization of the fish resources of the State in the
public interest. In making such finding the commission shall take
into consideration the interest of the people of the State in the
utilization and conservation of the fish supply and all economic and
other factors relating thereto, including the efficient and
economical operation of reduction plants.
8078. A hearing pursuant to this article shall be held within 30
days after application for a permit, upon such notice as the
commission shall prescribe. The commission may extend such a hearing
from time to time for a total period of not more than 30 days.
8079. The commission shall, whenever necessary to prevent
overexpansion, to insure the efficient and economical operation of
reduction plants, or to otherwise carry out the provisions of this
article, limit the total number of permits which are granted.
8079.1. Notwithstanding any other provision of this code or
regulation enacted pursuant thereto, the Director of the Department
of Fish and Game, or a representative appointed by him, may, without
notice or a hearing, grant a license to fish reduction plants to
dispose of dead or dying fish. The license may be immediately issued
by the director or his representative whenever such person
determines, in his discretion, that an emergency situation exists.
The estimated tonnage to be reduced shall be specified as a limit in
the license.
8080. Nothing in this article restricts the power of any court in
any proceeding relating to any matter arising out of the provisions
of this article.
8100. "Limited entry fishery" means a fishery in which the number
of persons who may participate or the number of vessels that may be
used in taking a specified species of fish is limited by statute or
regulation.
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.
8102. (a) The Legislature finds and declares that, in some limited
entry fisheries, two or more partners may be operating with one of
the partners holding the permit to participate in the fishery. The
Legislature further finds and declares that undocumented, de facto,
family partnerships are a longstanding custom in these fisheries.
The Legislature further finds and declares that great hardship
results when the permittee partner is no longer able to continue
working and leaves the other partner without a permit to continue
participating in the fishery.
(b) In any limited entry fishery in which permits are allocated to
participants in the fishery, and where the death, incapacity, or
retirement of a permittee from that fishery would deprive a working
partner of the permittee of the ability to continue to derive a
livelihood from that fishery, a permit shall be issued, upon
application, to one remaining partner.
(c) A working partner for the purposes of this section shall be a
spouse, child (including an adopted child), or sibling of the
permittee, whose investment or equity need not be proven by
documentation, or a person who can prove an investment or equity in
the vessel or gear used in the fishery, and who would otherwise have
been eligible for a permit and did not obtain one because he or she
was working with or was a partner with the permittee.
(d) The working partner shall also provide substantial evidence of
an actual physical working participation aboard the vessel supported
by the submission of documents filed with the Franchise Tax Board
and supported by trip settlement sheets or similar documents that
demonstrate earnings from that participation. "Trip settlement sheet"
means a document prepared after a vessel has completed a fishing
trip which displays the costs incurred, revenues received, and
profits paid out. Investment or equity alone does not establish that
the person is a working partner.
(e) Those existing working partners other than the family
relationships specified in subdivision (c) may, not later than
February 1, 1984, declare and prove the working partnership in a
manner satisfactory to the department and request that the department
state the fact of the working partnership upon the permit.
Thereafter, a nonfamily working partnership shall be declared,
proved, and noted upon any limited entry permit at the first issuance
of the permit.
(f) This article does not apply to permits to take herring for roe
in California.
8103. (a) The Legislature finds and declares as follows:
(1) The accidental death of a limited entry permittee results in
great hardships on the permittee's family.
(2) Under the law as it existed immediately prior to January 1,
1987, if a member of the permittee's family has not been actively
working in the fishery, the limited entry permit could not be
transferred to a member of the family, an action which deprives the
family of the opportunity to continue to derive a livelihood from the
fishery and which imposes greater hardships.
(3) When there is an accidental death of a limited entry
permittee, a transition period is necessary to allow a family member
to join the fishery and to become acclimated, knowledgeable, and
experienced in the fishery.
(b) Notwithstanding Section 8102, the department shall transfer a
permit for a limited entry fishery, upon application, to a parent,
spouse, child, or sibling of a permittee whose death was the result
of an accident which occurred after January 1, 1986.
(c) Application for the transfer of a permit pursuant to
subdivision (b) shall be made on or before January 1, 1987, or not
more than one year after the death of the permittee, whichever is
later.
(d) The director may authorize another person, when requested by
the new permittee, to serve in the place of the new permittee and to
engage in fishing activities under the authority of the limited entry
permit for not more than two years from the date of the permit
transfer.
(e) "Accidental death" means death resulting directly and solely
from any of the following:
(1) An accidental injury visible on the surface of the body or
disclosed by an autopsy, sustained solely by external, violent, and
accidental means.
(2) A disease or infection resulting directly from an accidental
injury and beginning within 30 days after the date of the injury.
(3) An accidental drowning.
8104. Upon the death of a limited entry permittee, the permit shall
vest in the permittee's estate or in the surviving community estate
and may be transferred by the executor, administrator, personal
representative, or surviving spouse to a qualified pointholder
pursuant to Section 8552.2 or to a partner qualified pursuant to
Section 8552.6. This transfer shall be initiated by notice to the
department, in writing, sent by certified mail, within one year of
the date of death. If no transfer is initiated within one year of
the date of death, the permit shall revert to the department for
disposition pursuant to Section 8552.4 and shall be thereafter
treated as a herring permit that has not been renewed. The
department may, upon written application, grant an extension of time
up to one additional year for the transfer to be initiated.
8110. (a) The Legislature finds and declares that dramatic changes
have very recently taken place in the methods and geographic areas of
effort by California-based commercial fishermen.
(b) The Legislature further finds and declares that because the
conditions which now exist could not be seen at the time of their
inception, some existing regulations are now unreasonably
restrictive. In some cases, existing statutes and regulations
prohibit California fishermen from participating in or landing in
California the primary product, or the incidental product, of their
effort in the newly developed far offshore fisheries. This situation
is detrimental to the interests of the fishermen, the fish
processors, and the consumers of California.
8111. "Far offshore fishery" means a fishery that lies outside the
United States 200-mile exclusive economic zone, as defined by
paragraph (6) of Section 1802 of Title 16 of the United States Code.
8112. Notwithstanding any other section of this code, fish taken in
a far offshore fishery, which may be lawfully imported, may be
landed in this state by persons operating a commercial fishing vessel
registered pursuant to Article 4 (commencing with Section 7880) who
took the fish in the far offshore fishery.
8113. (a) Prior to departure from any port in the United States for
the purpose of taking fish in the far offshore fishery, the operator
of any vessel landing fish in California that will be taken in the
far offshore fishery shall file a declaration with the department on
forms prescribed by the department.
(b) The declaration shall be valid when signed by the vessel
operator and completed with information prescribed by the department.
(c) Upon completion of the trip and within 12 hours of arrival at
a port in this state, the operator of the vessel shall complete and
submit the return portion of the declaration to the department.
(d) This section does not apply to any commercial fisherman using
or possessing only troll lines, as defined in subdivision (b) of
Section 9025.5, or gear for angling, as defined in Section 15, for
the taking or possession of albacore only.
8114. It is unlawful for the operator of any vessel operating under
authority of this article to fish in, or land fish from, any waters
within the United States 200-mile exclusive economic zone during any
trip for which the operator filed a declaration with the department
to fish in the far offshore fishery.
8120. The definitions in this section govern the construction of
this article:
(a) "Environmental purpose" means the intent to prevent or
minimize adverse ecological effects to water quality.
(b) "High seas interception" means the unauthorized taking of
salmon for commercial purposes outside the United States 200-mile
fishery conservation zone. "Unauthorized" means contrary to a statute
or regulation of the United States or this state or to a treaty or
international fishery agreement, or in violation of a foreign law.
(c) "Humanitarian purpose" means the intent to provide medical
services for a sick or injured person, or to prevent the loss of
human life.
(d) "Process" means affecting the condition or location of salmon,
including preparation, packaging, storage, refrigeration, or
transportation.
(e) "Written instrument" means hand written or printed matter,
including vessels' logs and papers, bills of lading and sale,
documents relating to processing, shipping, and customs, and
information stamped on or affixed to cans, crates, containers,
freight, or other means of storage or packaging.
8121. It is unlawful for any person to do any of the following:
(a) To buy, sell, trade, process, or possess salmon, or attempt to
buy, sell, trade, process, or possess salmon, with the knowledge
that the salmon has been, or will be, obtained by high seas
interception.
(b) To knowingly provide financing, premises, equipment, supplies,
services, power, or fuel used to buy, sell, trade, process, or
possess salmon that has been, or will be, obtained by high seas
interception.
(c) Act as a broker or middleman, or otherwise act on behalf of
another person, to arrange for or negotiate, or attempt to arrange
for or negotiate, the purchase, sale, trade, processing, or
possession of salmon, with the knowledge that the salmon has been, or
will be, obtained by high seas interception.
8122. It is unlawful for any person to create, circulate, or
possess any written instrument related to salmon with the knowledge
that the written instrument conveys misleading or untrue information
about the ownership, possession, processing, origin, destination,
route of shipping, type, or condition of salmon, or the time, place,
and manner of the taking of the salmon.
8123. (a) If any person knows that a vessel contains salmon
obtained by high seas interception or that the owner or operator of
the vessel intends to engage in the high seas interception of salmon,
it is unlawful for that person to do any of the following:
(1) Move persons, cargo, or other property to or from the vessel.
(2) Service or repair the vessel or its equipment.
(3) Provide the vessel with power, supplies, equipment, or fuel.
(4) Provide the vessel with information, other than weather
reports, capable of aiding the high seas interception of salmon or
frustrating or avoiding detection, including communicating the
movements, intentions, or activities of state or federal law
enforcement officials or other fishing vessels.
(5) Permit the vessel to dock or anchor, or to remain docked or
anchored, if that person is responsible for the operation of the
facility, harbor, or anchorage.
(b) This section does not prohibit any person from performing any
act or acts set forth in subdivision (a), if that person reasonably
believes that the act or acts were necessary for humanitarian or
environmental purposes or to prevent a significant loss of property,
if that person provides immediate notice, by the quickest available
means, to the United States Coast Guard, the department, or any law
enforcement agency as to the type of assistance provided and the
circumstances involved.
8125. There is hereby established the Commercial Fisheries Capacity
Reduction Account in the Fish and Game Preservation Fund. Fees
collected pursuant to Section 8126 shall be deposited into the
account. Money in the account shall be used to repay the California
fishermen's share of any federal loans used in the federal West Coast
Groundfish Fishery Capacity Reduction Program (Sec. 212, P.L.
107-206). The commission may establish, by regulation, any
additional program elements necessary to conform state law to federal
law, in order to allow California groundfish fishermen to fully
participate in the federally established buy-back program for the
Pacific groundfish fishery.
8126. The commission shall establish a capacity reduction fee on
the taking of certain species of fish and shellfish, consistent with
the West Coast Groundfish Fishery Capacity Reduction Program. In
establishing the fee, the commission shall also consider the
administrative cost associated with collecting these fees.