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(continued)
(c) Permits.
(1) Permits to take herring for roe purposes will be issued by the department beginning November 15. Permits will be sent by certified mail, return receipt requested, to the permittees. Not more than three permits shall be issued for Crescent City and not more than four permits shall be issued for Humboldt Bay.
No new round haul permits shall be issued for San Francisco Bay. No new gill net permits shall be issued for the Tomales Bay permit area until the maximum number of permits is less than 35. No new odd- or even-numbered gill net permits shall be issued for San Francisco Bay until the maximum number of permits is less than 232. No new "DH" permits shall be issued until the maximum number of permits is less than 116. The permittee shall be responsible for all crew members acting under his or her direction or control to assure compliance with all Fish and Game regulations as provided in this section, or in the Fish and Game Code, relating to herring.
(A) The total number of gill net permits issued to individuals not qualifying under subsection (a)(2) shall be the difference in number of permittees meeting such qualifications and the total number of gill net permits authorized by the commission in subsection (c)(1).
(B) Individuals not qualifying under subsection (a)(2) will be eligible to apply for any available odd- or even-numbered gill net permits provided they are a currently licensed California commercial fisherman.
(C) Individuals not qualifying and receiving permits under subsections (a)(2) or (c)(1)(B) will be eligible to apply for any available "DH" gill net permits provided they are a currently licensed California commercial fisherman.
(D) In the event that the number of eligible applicants qualifying under subsections (c)(1)(B) or (c)(1)(C) exceeds the available permits, a lottery shall be held. Preferential status in the lottery will be given under the following conditions:
1. One point (maximum of ten) for each year an applicant has held a valid California commercial fishing license in the previous twelve years (prior to the current license year). A point shall be granted only if the applicant's name appears on the department's master file of commercial licensees or if the applicant presents a valid commercial fishing license or verifiable receipt for the year claimed.
2. Five points for one year of service as a paid crewmember in the herring fishery, 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.
3. Preference points awarded for participation in the herring fishery shall only be granted if the applicant's name has been filed with the department pursuant to subsection (e)(2) of these regulations, and is supported by documentation demonstrating proof of payment for service on a crew in the California herring roe fishery as specified in section 8559 of the Fish and Game Code.
4. Permits will be issued predicated on the total number of points accrued by an applicant, beginning with those applicants who accrue the maximum number of points and working in descending order from this maximum. A drawing will be held to allocate the remaining permits when the permits available are exceeded by the number of applicants in a particular point category.
(E) Preferential status points will not be given for participation on vessels with permits specified in subsections (c)(2) and (c)(3) of this section.
(2) Fresh Fish Market. Ten permits will be issued to take herring for the fresh fish market in San Francisco Bay and five in Tomales Bay. See subsection 699(b) of these regulations for the fee for this permit. However, no permittee may take or possess herring except in the amount specified on a current daily market order, not to exceed 500 pounds, from a licensed fish dealer. Fresh fish market permits will be issued beginning November 1 at the department's San Francisco Bay Area Marine Region office. In the event there are more applicants than the specified number of available fresh fish permits, a lottery will be held to determine the permittees. Applicants may apply for only one bay. Fresh fish market permits shall be in force from November 2 through November 15 and April 1 through October 31.
(3) Ocean Waters. Permits to take herring in ocean waters will be issued by the department at its offices in Monterey, the San Francisco Bay area and Eureka. See subsection 699(b) of these regulations for the fee for this permit.
Herring taken under the authority of subsections (c)(2) and (c)(3) may not be sold for roe purposes.
(d) Vessel Identification. The master of any boat engaged in taking herring under these regulations shall at all times while operating such boat, identify it by displaying on an exposed part of the superstructure, amidship, on each side and on top of the house visible from the air, the herring permit number of that vessel in 14-inch high, 2-inch wide black Roman alphabet letters and Arabic numerals painted on a white background permanently fixed to each side of the vessel.
(e) Monitoring of Herring.
(1) Herring taken for roe purposes may only be delivered to a person licensed pursuant to subsection (j) of these regulations.
(2) Within four weeks of the date an individual quota is reached, or within four weeks of the end of the season, the permittee shall submit to the department's San Francisco Bay Area Marine Region office a list of crewmembers assisting in fishing operations during the current herring season. The list shall include the full name and California commercial fishing license number of each crewmember. Gill net permittees shall notify the department's San Francisco Bay Area Marine Region office within 24 hours if they terminate fishing operations for the season prior to the overall quota being taken.
(3) The department will estimate from the current trend of individual boat catches the time at which the herring season catch will reach any quota permitted under these regulations and will publicly announce that time on VHF/Channel 16. It shall be the responsibility of all permittees to monitor this radio channel at all times. Any announcement made by the department on VHF/Channel 16 shall constitute official notice. All fishing gear must be removed from the water by the announced time terminating fishing operations. The department may announce a temporary closure for the gill net fishery in order to get an accurate tally of landings and to allow all boats to unload. If the fishery is reopened, permittees may be placed on allotted tonnages to preclude exceeding a quota and, if necessary, additional time may be granted to reach the quotas.
(4) It is unlawful to transfer herring or herring nets from one permittee to another or from one boat to another, or from one gear type to another except that, nonmotorized lighters may be used, provided they do not carry aboard any gear capable of taking herring, including net reels, and that the catches of not more than one permittee are aboard the lighters at any time. Permit vessels shall not serve as lighters for other permit boats. In San Francisco Bay a permittee and his/her gear must stay together when delivering fish to market. Except as specified in subsection (e)(6) of these regulations, all fish taken by gill nets shall be retained and landed. Gill net permit vessels may not be used to assist in herring fishing operations during their off-week.
(5) All herring landed in excess of any established permit quota shall be forfeited to the department by the signing of a Release of Property form (FG-MR-674 (Rev. 5/02)), which is incorporated by reference herein. Such fish shall be sold or disposed of in a manner determined by the department. The proceeds from all such sales shall be paid into the Fish and Game Preservation Fund.
(6) Sturgeon, halibut, salmon, steelhead and striped bass may not be taken by or possessed on any vessel operating under the authority of these regulations. All sturgeon, halibut, salmon, steelhead and striped bass shall be returned immediately to the water.
(f) Methods of Take.
(1) For purposes of this section regarding harvest of herring: San Francisco Bay is defined as the waters of Fish and Game districts 12 and 13 and that portion of district 11 lying south of a direct line extending westerly from Peninsula Point, the most southerly extremity of Belvedere Island (37 degrees 51 minutes 43 seconds N, 122 degrees 27 minutes 28 seconds W), to the easternmost point of the Sausalito ferry dock (37 degrees 51 minutes 30 seconds N, 122 degrees 28 minutes 40 seconds W); Tomales Bay is defined as the waters of district 10 lying south of a line drawn west, 252 degrees magnetic, from the western tip of Tom's Point (38 degrees 12 minutes 53 seconds N, 122 degrees 57 minutes 11 seconds W) to the opposite shore (38 degrees 12 minutes 44 seconds N, 122 degrees 57 minutes 42 seconds W); ocean waters are limited to the waters of districts 6 (excluding the Crescent City area), 7, 10 (excluding Tomales Bay), 16 and 17 (except as specified in subsection (h)(6) of these regulations); Humboldt Bay is defined as the waters of districts 8 and 9; Crescent City area is defined as Crescent City Harbor and that area of the waters of district 6 less than 20 fathoms in depth between two nautical measure lines drawn due east and west true from Point Saint George (41 degrees, 47 minutes, 07 seconds N, 124 degrees, 15 minutes, 16 seconds W) and Sister Rocks (41 degrees, 39 minutes, 31 seconds N, 124 degrees 08 minutes 43 seconds W).
(2) The use of round haul nets to take herring for roe purposes is prohibited. The use of round haul nets to take herring is prohibited except in ocean waters (as defined in subsection (f)(1) of these regulations).
(A) No permittee shall possess or fish more than a total of 65 fathoms (1 shackle) of gill net, as measured at the cork line, in San Francisco and Tomales bays. Said gill nets shall not exceed 120 meshes in depth. In Humboldt Bay and Crescent City Harbor, no permittee shall possess or fish in combination more than 150 fathoms of gill net. Fresh fish permittees shall not possess or fish more than 65 fathoms (1 shackle).
Set gill nets shall be anchored by not less than 35 pounds of weight at each end, including chain; however, at least one-half of the weight must be anchor. Gill nets shall be tended at all times in San Francisco Bay. Tended means the registered gill net permittee shall be in the immediate proximity, not exceeding one nautical mile, of any gill net being fished.
(B) In Tomales Bay, for the 2005-06 season only, the length of the meshes of any gill net used or possessed in the roe fishery shall not be less than 2 inches or greater than 2 1/2 inches, except that four permittees (designated by the department in writing) participating in department-sponsored research on mesh size may use gill nets approved by the department with mesh less than the size designated herein. The use of mesh size of no less than 2 inches or greater than 2 1/2 inches is designated for evaluation purposes by the department and shall revert to a mesh size of no less than 2 1/8 inches or greater than 2 1/2 inches following the 2005-06 season, unless otherwise designated herein. In Humboldt Bay and Crescent City Harbor the length of the meshes of any gill net used or possessed in the roe fishery shall not be less than 2 1/4 inches or greater than 2 1/2 inches. In San Francisco Bay the length of the meshes of any gill net used or possessed in the roe fishery shall not be less than 2 or greater than 2 1/2 inches, except that six permittees (designated by the department in writing) participating in department-sponsored research on mesh size may use gill nets of another size approved by the department. The meshes of any gill net used or possessed by fresh fish permittees shall not be greater than 2 inches.
Length of the mesh shall be the average length of any series of 10 consecutive meshes measured from the inside of the first knot and including the last knot when wet after use; the 10 meshes, when being measured, shall be an integral part of the net as hung and measured perpendicular to the selvages; measurements shall be made by means of a metal tape measure while 10 meshes are suspended vertically under one-pound weight, from a single stainless steel peg or nail of no more than 5/32 inch in diameter. In Humboldt Bay and Crescent City Harbor, the length of any series of 10 consecutive meshes as determined by the above specification shall not be less than 22 1/2 inches or greater than 25 inches. In Tomales Bay, the length of any series of 10 consecutive meshes as determined by the above specifications shall not be less than 20 inches or greater than 25 inches. In San Francisco Bay, the length of any series of 10 consecutive meshes as determined by the above specification shall not be less than 20 inches or greater than 25 inches.
(C) No net shall be set or operated to a point of land above lower low water or within 300 feet of the following piers and recreation areas: Berkeley Pier, Paradise Pier, San Francisco Municipal Pier between the foot of Hyde Street and Van Ness Avenue, Pier 7 (San Francisco), Candlestick Point State Recreation Area, the jetties in Horseshoe Bay, and the fishing pier at Fort Baker. No net shall be set or operated within 70 feet of the Mission Rock Pier. In the Crescent City area and Humboldt Bay gill nets may be set or operated within 300 feet of any pier.
(D) No nets shall be set or operated in Belvedere Cove north of a line drawn from the tip of Peninsula Point (37 degrees 51 minutes 43 seconds N, 122 degrees 27 minutes 28 seconds W) to the tip of Elephant Rock (southwest of Pt. Tiburon at 37 degrees 52 minutes 19 seconds N, 122 degrees 27 minutes 03 seconds W). Also, no gill nets shall be set or operated from November 15 through February 15 inside the perimeter of the area bounded as follows: beginning at the middle anchorage of the western section of the Oakland Bay Bridge (Tower C at 37 degrees, 47 minutes, 54 seconds N, 122 degrees, 22 minutes, 40 seconds W) and then in a direct line southeasterly to the Lash Terminal buoy #5 (G"5"buoy, flashing green 4s at 37 degrees, 44 minutes, 23 seconds N, 122 degrees, 21 minutes, 36 seconds W), and then in a direct line southeasterly to the easternmost point at Hunter's Point (Point Avisadero at 37 degrees, 43 minutes, 44 seconds N, 122 degrees, 21 minutes, 26 seconds W) and then in a direct line northeasterly to the Anchorage #9 buoy "A" (Y "A" buoy, flashing yellow 4s at 37 degrees, 44 minutes, 46 seconds N, 122 degrees, 19 minutes, 25 seconds W) and then in a direct line northwesterly to the Alameda N.A.S. entrance buoy #1 (G"1"buoy, flashing green 4s at the entrance to Alameda Carrier Channel, 37 degrees, 46 minutes, 38 seconds N, 122 degrees, 20 minutes, 27 seconds W) and then in a direct line northwesterlyto the Oakland Harbor Bar Channel buoy #1 (G"1"buoy, flashing green 2.5s at 37 degrees, 48 minutes, 15 seconds N, 122 degrees, 21 minutes, 23 seconds W) and then in a direct line southwesterly to the point of beginning. (Tower C of the Oakland Bay Bridge, at 37 degrees, 47 minutes, 54 seconds N, 122 degrees, 22 minutes, 40 seconds W).
(E) No boats or nets shall be operated or set in violation of existing state regulations applying to the navigation or operation of fishing vessels in any area, including but not limited to San Francisco Bay, Tomales Bay, Humboldt Bay and Crescent City Harbor.
(F) Gill nets shall be marked at both ends with a buoy displaying above its waterline, in Roman alphabet letters and Arabic numerals at least 2 inches high, the official number of the vessel from which such net is being fished. Buoys shall be lighted at both ends using matching white or amber lights that may be seen for at least a distance of 100 yards and marked at both ends with matching flags or markers or placards, all of rigid or non-collapsible material of the same color, on a staff at least 3 feet above the water at each end, bearing the herring permit number in contrasting 4-inch black letters.
(G) The use of explosives, seal bombs, or marine mammal deterrent devices in the herring fishery is prohibited inside the waters of San Francisco Bay during the herring season.
(H) All San Francisco Bay herring permittees or their temporary substitutes shall recognize city ordinances governing transient noise sources, when fishing within 500 feet of any shoreline with residential dwellings, between the hours of 10:00 p.m. and 7:00 a.m. through implementation of noise reduction measures specified or developed by the herring fishing industry and approved by the department. Noise reduction measures include, but are not limited to: noise dampening devices for shakers and anchor chains, muffled engine exhaust systems, limited use of deck speakers, and/or reduced speed within 500 feet of shore.
(g) Quotas.
(1) Crescent City Area: The total take of herring in the Crescent City area for commercial purposes by use of gill net only shall not exceed 30 tons per season.
(2) Humboldt Bay: The total take of herring in Humboldt Bay for commercial purposes by use of gill net only shall not exceed 60 tons per season.
(3) Tomales Bay: The total take of herring for commercial purposes by use of gill net only shall be as follows:
(A) In Tomales Bay waters a fishing quota, not to exceed 400 tons, shall be permitted for the 2005-06 season. However, if spawning escapement, as determined by the department, reaches or exceeds 4,000 tons prior to February 15, the quota shall be increased as follows: 1) if spawning escapement is more than 4,000 tons, the total take of herring shall not exceed 500 tons for the season.
(B) The total take of herring for the fresh fish market shall not exceed 10 tons per season.
(4) San Francisco Bay: The total take of herring in San Francisco Bay for commercial purposes shall not exceed 4,502 tons for the 2005-06 season. Tonnage shall be allocated on the following basis:
(A) Gill net permittees (including "CH" permittees): 4,153 tons. Tonnage shall be allocated to each fishing group ( "DH", odd, and even) in proportion to the number of permits that are assigned to each fishing group minus the number of permits in each platoon that are suspended for the entire season. Each gill net permittee (designated by the department in writing) participating in research sponsored by the department shall be assigned an individual quota equal to 0.5 percent of the season gill net quota per assigned platoon, unless provided for pursuant to subsection (g)(4)(B) of these regulations.
(B) The total take of herring for the fresh fish market shall not exceed 20 tons per season, except that 10 tons total may be transferred, in proportion determined by the department, to gillnet permittee(s) participating in research sponsored by the department pursuant to subsection (g)(4)(A) of these regulations.
(5) Ocean Waters: Herring may not be taken for roe purposes.
(h) Season.
(1) Humboldt Bay: The season shall be from noon on January 2 until noon on March 9.
(2) Crescent City: The season shall be from noon on January 14 until noon on March 23.
(3) San Francisco Bay: The season shall be from 5 p.m. on Sunday, December 11, 2005 until 6 a.m. on Friday, December 23, 2005, from 5 p.m. on Monday, December 26, 2005 until 6 a.m. on Friday, December 30, 2005 and from 5 p.m. on Monday, January 2, 2006 to noon on Friday, March 17, 2006.
(A) In San Francisco Bay, gill net permittees with even permit numbers and "CH" permittees assigned to the "even" fishing group shall be permitted to fish only on the following dates: January 8-13, January 22-27, February 5-10, February 19-24, March 5-10.
(B) In San Francisco Bay, gill net permittees with odd permit numbers and "CH" permittees assigned to the "odd" fishing group shall be permitted to fish only on the following dates: January 2-6, January 15-20, January 29-February 3, February 12-17, February 26-March 3, March 12-17.
(C) In San Francisco Bay, gill net permittees with "DH" permit numbers and "CH" permittees assigned to the "DH" fishing group shall be permitted to fish only on the following dates: December 11-16, December 18-23, December 26-30. In the event permittees described under subsections (h)(3)(A) and (h)(3)(B) both reach their quotas pursuant to subsection (g)(4)(A), "DH" permittees, on notification by the department, may resume fishing operations until such group has reached the successive established termination date or quota.
(D) No more than six gill net permittees (designated in writing by the department) participating in research sponsored by the department shall be permitted to fish, under the direction of the department, from 5 p.m. on Sunday, December 11, 2005 until 6 a.m. on Friday, December 23, 2005, from 5 p.m. on Monday, December 26, 2005 until 6 a.m. on Friday, December 30, 2005 and from 5 p.m. on Monday, January 2, 2006 to noon on Friday, March 17, 2006.
(4) In Tomales Bay, the season shall be from 5:00 p.m. on Sunday, December 25, 2005 until noon Friday, February 24, 2006.
(5) Herring fishing in San Francisco Bay is not permitted from noon Friday through 5:00 p.m. Sunday night. Herring fishing is allowed in Tomales Bay from noon Friday through 5:00 p.m. Sunday night if the department is reimbursed for the cost of operations. The department shall submit a detailed invoice of its cost of operations within 30 days of providing the service. Party shall remit payment to the department within 30 days of the postmark date of the department's invoice.
(6) Ocean Waters: The season shall be from April 1 to October 31 for all authorized fishing gear except in districts 16 and 17 where the season shall be from April 1 to November 30.
(7) In the event permittees described under subsections (h)(3)(A) or (h)(3)(B) reach their quota pursuant to subsection (g)(4)(A), the alternate group of permittees on notification by the department may commence fishing operations until such group has reached the successive established termination date or quota.
(i) Any permit issued pursuant to this section may be suspended or revoked at any time by the commission for cause after notice and opportunity to be heard, or without a hearing upon conviction of a violation of Fish and Game Code statutes or Division 1, Title 14, CCR, while fishing as a participant in the herring fishery by a court of competent jurisdiction. A permittee whose permit has been suspended or revoked for conviction of a violation of Fish and Game Code statutes or Division 1, Title 14, CCR, while fishing as a participant in the herring fishery may request a hearing before the commission to show cause why his/her herring fishing privileges should be restored. A person whose herring permit has been revoked by the commission shall not participate in any herring fishery during the following season. A person whose herring permit has been suspended for the entire season by the commission shall not participate in any herring fishery during the season the permit is suspended. A person whose herring permit has been suspended for a period less than the entire season by the commission shall not participate in any herring fishery during the period that the permit is suspended. If a herring permit that had a temporary substitute is suspended by the commission due to the actions of the temporary substitute, the person who acted as the temporary substitute shall not participate in any herring fishery during the following season during the period that the permit is suspended. If a herring permit that had a temporary substitute is revoked by the commission due to the actions of the temporary substitute, the person who acted as the temporary substitute shall not participate in any herring fishery during the following season. If a herring permittee is convicted of a violation, or if the permit is suspended or revoked, due to the actions of a temporary substitute who is simultaneously fishing his or her own permit on a single vessel in the same fishing group, the person who was acting as the temporary substitute will receive the same penalty against his/her own permit as received by the permittee, pursuant to these regulations and Section 163.5, Title 14, CCR. For Category II violations prescribed in Section 163.5(f) against a permit due to the actions of a temporary substitute while simultaneously fishing his/her own permit, equal points or penalties shall be assigned to the permit owned by the temporary substitute.
(j) Herring Buyer's Permit. A holder of a current fish receiver's license shall obtain a permit to buy herring for roe purposes for each fishing area specified in subsection (f)(1) of these regulations and approved by the department. After approval of an application and payment of the $750 filing fee (filing fees in Humboldt Bay and Crescent City area shall be waived), a revocable, nontransferable permit to buy herring for roe purposes may be issued subject to the following regulations:
(1) The permittee shall permanently mark all vehicles, containers or pallets with individualized serial numbers and predetermined tare weights.
The serial number and predetermined tare weight shall be permanently marked in letters, and numerals at least 3 inches high on each side of vehicle container or pallet.
(2) A landing receipt must be made out immediately upon completion of weighing of any single boat load (hereinafter "load") of herring of a permittee. A sample of herring for roe testing purposes shall be taken from every load. No herring shall be taken for testing purposes from a load that has not first been weighed and recorded.
(A) The landing receipt for each vessel must be completed and signed by both the herring permittee and a certified weighmaster or his/her deputy prior to commencing unloading operations of another vessel.
(B) The weighmaster or deputy filling out the landing receipt must include all information required by Fish and Game Code Section 8043 and shall sign the landing receipt with his/her complete signature. The weighmaster shall list on the landing receipt the number of fish in, and the weight of, each roe test for the landing reported on the receipt.
(C) All landing receipts that have not been delivered to the department must be immediately available to the department at the weigh station.
(D) A reasonable amount of herring will be made available by the herring buyer to the department, at no cost, for management purposes.
(3) Prior to weighing herring, each permittee shall have each weighing device currently certified and sealed by the County Division of Weights and Measures.
(4) Weight tally sheets shall be used when any load of fish is divided and placed into more than one container prior to the completion of the landing receipt. Weight tally sheets shall include the time unloading operations begin.
(A) The tally sheets shall be composed of four columns:
1. The serial or I.D. number of all containers in which the load is initially placed and all subsequent containers, if any, in which the load is placed until, and including for, shipment from the buyer's premises.
2. The gross weight;
3. The tare weight of the bin or containers; and
4. The net weight of fish. Net weight will include the weight of the herring taken for testing purposes.
(B) The work or weight tally sheets shall be retained by the permittee for one year, and must be available at all times for inspection by the department.
(C) When requested by the department, the buyer shall submit to the department a California Highway Patrol weighing certificate for any truck load designated by the department. Such certificate shall be placed in the U.S. Postal system to the department's San Francisco Bay Area Marine Region office within twenty-four (24) hours of the truck's departure from the buyer's premises.
(5) In San Francisco Bay, herring may not be unloaded between the hours of 10 p.m. and 6 a.m., or at any time on Saturdays and Sundays, unless the permittee has notified and received prior approval from the department to conduct such activities during those hours.
(6) Every permittee shall comply with all applicable sections of the Fish and Game Code.
(7) The permittee is responsible to ensure that all provisions of the herring buyer's permit are complied with, even though the tasks may be delegated to others.
(8) The permit may be revoked upon violation of any provisions contained herein by the holder of the permit, his/her agents, servants, employees, or those acting under his/her direction or control and shall not be renewed for a period of one year from the date or revocation.


Note: Authority cited: Sections 1050, 5510, 8550, 8553 and 8555, Fish and Game Code. Reference: Sections 8043, 8550, 8552, 8552.6, 8553, 8554, 8555, 8556, 8557 and 8559, Fish and Game Code.

s 163.1. Herring Permit Transfers.
(a) Definitions.
Individual means a single natural person.
Individually held means a permit that is not held by a partnership under Fish and Game Code Section 8552.6.
Permit means a valid entitlement issued pursuant to Fish and Game Code Section 8552, which has not been suspended or revoked, to take herring for roe purposes.
Fishing group means those platoons whose season is designated in Section 163(a) of these regulations.
(b) Multiple permits. In the San Francisco Bay fishery, no person may ever hold, either individually or in partnership, more than a total of three permits, and/or more than one permit in any fishing group.
(c) Notice/application to transfer and transfer fee. A transfer under this regulation does not require the notice to qualified point holders required by Fish and Game Code Section 8552.2. The permit holder must submit a notarized letter, signed by the permit holder, to the department's San Francisco Bay Area Marine Region office requesting transfer of the permit, identifying the individual to whom the permit is to be transferred. Notwithstanding Fish and Game Code Section 8552.7 the fee to transfer a herring permit is one thousand dollars ($1000). The fees shall be deposited in the Fish and Game Preservation Fund and shall be expended for research and management activities to maintain and enhance herring resources pursuant to subsection 8052(a) of the Fish and Game Code.
(d) Permit Renewal. Each permit individually held shall be separately renewed according to the procedures in Section 163 of these regulations.
(e) Appeals. Any individual who is denied the transfer of a permit may appeal in writing to the department's San Francisco Bay Area Marine Region office not more than 60 days from the date of denial. The appeal shall describe the basis for the appeal and contain all supporting evidence. If the denial is sustained, the individual may appeal in writing to the commission within 60 days of the date of the department's decision.


Note: Authority cited: Sections 8552.1, 8552.3 and 8553, Fish and Game Code. Reference: Sections 8552, 8552.1, 8552.2, 8552.3 and 8552.7, Fish and Game Code.

s 163.5. Penalties in Lieu of Suspension or Revocation -Herring Permittees.
(a) Pursuant to the provisions of section 309 of the Fish and Game Code and sections 163 and 746, Title 14, CCR, any permit issued pursuant to Section 8550 of the Fish and Game Code may be suspended or revoked at any time by the Commission for cause, after notice and an opportunity to be heard, or without a hearing upon conviction of the permittee or his/her substitute (pursuant to Section 163, Title 14, CCR) of a violation of Fish and Game Code statutes or Division 1, Title 14, CCR, while fishing as a participant in the herring fishery by a court of competent jurisdiction. A permittee whose permit has been suspended or revoked for conviction of a violation of Fish and Game Code statutes or Division 1, Title 14, CCR, while fishing as a participant in the herring fishery may request a hearing before the commission to show cause why his or her herring fishing or buying privileges should be restored.
(b) Notwithstanding subsection (a), the Executive Secretary of the Commission shall enter into a stipulated compromise settlement agreement with the consent of the permittee for category I violations, and may enter into a compromise for category II violations with the consent of the permittee. The provisions of this section regarding compromise settlement agreements shall not apply if action is brought to recover civil damages under Section 2014 of the Fish and Game Code from the person subject to action under this section.
(c) Terms and Conditions of a stipulated compromise agreement may include, but are not limited to, the payment of monetary penalties, the reduction of a revocation to a suspension for a specified period of time, a period of probation not to exceed three years or any other terms and conditions, mutually agreed upon by the Executive Secretary acting for the Commission and the permittee, without further hearing or appeal.
(d) A compromise settlement agreement may be entered before, during or after the Commission hearing on the matter, but is valid only if executed and signed by the Executive Secretary and the permittee prior to the adoption of the decision by the Commission. Any monetary penalty included in a compromise settlement agreement shall be within the range of monetary penalties as prescribed in subsection (f) of these regulations and shall be due and payable within 30 days after the compromise is entered into. Any and all funds submitted as payment in whole or in part by a permittee of any monetary penalties stipulated in a compromise settlement agreement shall be nonrefundable.
(e) If the permittee fails to perform all of the terms and conditions of the compromise settlement agreement, such agreement is thereby declared void and the Commission, notwithstanding the compromise settlement agreement, may take any action authorized by section 163 of these regulations against the permittee.
(f) Procedures for determining monetary penalties:
(1) Monetary penalties (score range multiplied by the monetary range) for compromise settlement agreements shall be based on the following point system:
SCORE RANGE MONETARY RANGE
(Total Points)
1-10 $200 per point as provided in subsection (f)(2) below.
11+ $400 per point as provided in subsection (f)(2) below.

(2) The score range shall be based on a cumulative total of the points assigned in this subsection:
(A) POINTS ASSIGNED FOR CATEGORY I VIOLATIONS ARE AS FOLLOWS:
1. Failure to properly identify vessel (Sec. 163(d)) 1 point
2. Improperly marked buoys or flags (Sec. 163(f)(2)(F)) 1 point
3. Failure to submit application for renewal of permit prior
to the established deadline (Sec. 163(b)(3)) 1 point
plus 1/4 point
for each state
working day,
or portion
thereof, the
application
is late, not to
exceed the cost
of a nonresident
herring permit as
specified in
Section 8550.5,
Fish and Game
Code.
4. Failure of permittee to have herring permit, commercial
fishing license, or boat registration aboard the permit
vessel (Sec. 163, para. 1) 2 points
5. Setting or operating nets within 300 feet of specified
piers and jetties (Sec. 163(f)(2)(C) and (f)(2)(E)) 3 points
6. Failure to "tend" nets (Sec. 163(f)(2)(A)) 5 points
7. Failure of herring buyer to permanently mark all
vehicles, containers or pallets (Sec. 163(j)(1)) 5 points

(B) POINTS ASSIGNED FOR CATEGORY II VIOLATIONS ARE AS FOLLOWS:
1. Unloading fish without recovering both nets and
having them aboard vessel (Sec. 163(e)(4)) 6 points
2. Fishing in a closed area (Sec. 163(f)(1) and 12 points, plus
163(f)(2)(D))
all fish and nets
on the vessel at
the time of the
violation shall
be forfeited to
the department
and such fish and
nets shall be sold
or disposed of in
a manner
determined by
the department
with the
proceeds from
all such sales
paid into the Fish
and Game
Preservation
Fund
3. Failure to remove fishing gear from water by
announced time terminating fishery operations
(Sec. 163(e)(3)) 6 points,
plus 1/2 point
for each hour,
or portion
thereof, after
closing time
4. Possession or use of nets with undersized mesh
(Sec. 163 (f)(2)(B)) 12 points, plus
all fish and nets
on the vessel at
the time of the
violation shall
be forfeited to
the department
and such fish and
nets shall be sold
or disposed of in
a manner
determined by
the department
with the
proceeds from
all such sales
paid into the Fish
and Game
Preservation
Fund
5. Failure to immediately return all halibut, sturgeon,
salmon, steelhead and striped bass to the water
(Sec. 163(e)(6)) 10 points
6. Possession or use of extra nets or nets which
exceed maximum length restrictions (Sec. (f)(2)(A)) 12 points,
plus 1/2 point for
every 5 fathoms
of net, or portion
thereof, exceed-
ing maximum,
plus all fish and
nets on the
vessel at the time
of the violation
shall be forfeited
to the
department and
such fish and
nets shall be sold
or disposed of in
a manner
determined by
the department
with the
proceeds from
all such sales
paid into the Fish
and Game
Preservation
Fund
7. Failure of permittee or his or her temporary substitute,
authorized by the department, to be aboard the vessel
during herring fishing operations (Sec. 163, para 1) 10 points
8. Failure to complete and maintain weight tally sheets
(Sec. 163(j)(4)) 10 points
9. Failure to immediately complete a Fish and Game
receipt upon completion of weighing any load or
lot of fish (Sec. 163(j)(2)) 15 points

(C) For each prior conviction of the permittee within the past three years for violations of the laws or regulations pertaining to the commercial take of herring:
1. The following additional points shall be assessed:
(i) For one prior conviction for a violation of the commercial herring fishing laws or regulations within the past three years, the monetary assessment shall be doubled if the total point score (points from prior violation added to points for current violation) is 10 or less, and tripled if such total point score is 11 points or more.
(ii) For two prior convictions for violations of the commercial herring fishing laws or regulations within the past three years, the monetary assessment shall be quadrupled if the total point score (points from prior convictions added to points for current violation) is 17 or less.
2. The permit shall be revoked, or suspended for a period of at least 1 year, if the total point score is 18 points or more.
(3) Conviction of multiple violations, committed at the same time, shall be treated as one conviction for the purposes of implementing the provisions of this section.
(4) All monetary penalties for compromise agreements assessed under this section shall be deposited by the Department to the Fish and Game Preservation Fund.


Note: Authority cited: Sections 8553 and 8555, Fish and Game Code. Reference: Sections 309, 8552, 8553 and 8555, Fish and Game Code.

s 163.6. Commercial Harvesting of Herring.


Note: Authority cited: Section 8550, Fish and Game Code. Reference: Section 8550, Fish and Game Code.

s 164. Harvesting of Herring Eggs.
(a) Herring eggs may be taken for commercial purposes only under a revocable, nontransferable permit issued by the department. A department-issued copy of the permit shall be aboard each vessel harvesting, processing or transporting herring eggs under the authority of the permit. The permittee or his/her authorized agent shall be aboard any vessel that is harvesting, processing or transporting herring eggs under the authority of the permit. The permit shall list the names of all authorized agents and all vessels used for harvesting, processing or transporting herring eggs under the authority of the permit (This includes the attachment of any changes approved by the department after the permit is issued).
(b) Herring eggs may be harvested only from the waters of San Francisco Bay. The harvest season is December 1 to March 31.
(c) For purposes of this section, San Francisco Bay is defined as the waters of Fish and Game districts 11, 12, 13 and that part of district 2 known as Richardson Bay.
(d) No more than 11 permits may be issued under the provisions of these regulations. No new permits shall be issued until the maximum number of permits is less than 10. The commission will review and determine annually whether further action, other than permit attrition, is deemed necessary to achieve a reduction to 10 permits.
(e) Fishing, Harvesting, and Processing Defined. Unless the context requires otherwise, the following definitions shall apply to the herring eggs on kelp (HEOK) fishery:
(1) "Fishing" means the act of suspending giant kelp (Macrocystis pyrifera) for the purposes of taking herring eggs, and/or the subsequent act of removing herring eggs on kelp from the water for the purposes of transport or harvest. Any person engaged in fishing shall possess a commercial fishing license pursuant to Section 7850 of the Fish and Game Code.
(2) "Harvesting" means the act of removing herring eggs on kelp from the water for the purposes of processing for sale and/or transport to market. Any person engaged in harvesting shall possess a commercial fishing license pursuant to Section 7850 of the Fish and Game Code.
(3) "Processing" means the act of separating or removing kelp blades (with herring eggs attached) from the stipe of harvested herring eggs on kelp, and loading the processed blades into bins or totes. Any person engaged in, or employed for the specific purpose of, processing herring eggs on kelp shall fall under the category of nonapplicability in regard to possession of a commercial fishing license pursuant to Section 7850.5 of the Fish and Game Code. Pursuant to Section 7850.5 of the Fish and Game Code, a person engaged in processing (permittees and authorized agents excepted) may stand aboard a herring eggs on kelp vessel while at a dock or landing, but any not be transported aboard the vessel. A person engaged in processing (permittees and authorized agents excepted) may not stand on the herring eggs on kelp raft, nor physically participate in the removal of herring eggs on kelp from the water.
(f) Permits. Permits shall be issued in two categories:
(1) Prior permittee. Permits shall be issued to all prior permittees. A prior permittee is defined as a person who has:
(A) met the requirements under subsection (g) of these regulations, and
(B) renewed their herring eggs on kelp permit for the immediately preceding herring eggs on kelp season, and
(C) submitted all fees from prior seasons.
(2) New permittee. A new permittee is defined as any applicant who held a herring permit issued pursuant to Section 163 of these regulations during the preceding herring season, but does not qualify as a prior permittee as defined above. The total number of permits available to new permittees shall be the difference between the 10 permit limit and the number of permits issued to individuals qualifying as prior permittees. In the event that the number of eligible applicants qualifying for new permits exceeds the number of available permits, a lottery shall be held.
(g) Permit conditions: Every person operating under a permit to harvest herring eggs shall:
(1) Forfeit his or her herring fishing privileges authorized pursuant to Section 163 of these regulations during the same season.
(2) In addition to any license fees required by the Fish and Game Code, pay a royalty of $500 per ton of herring eggs on kelp taken. (The royalty fee shall include the landing tax imposed pursuant to Article 7.5, (commencing with Section 8040) Chapter 1, Part 3, Division 6, of the Fish and Game Code, and the royalty fee required for the harvesting of kelp pursuant to Section 165, Title 14 CCR).
(3) Submit a Herring-Eggs-on-Kelp Monthly Landings and Royalty Report (FG 143 HR (Rev. 5/01), which is incorporated by reference herein (available at the department's San Francisco Bay Area Marine Region office), with payment due to the department's San Francisco Bay Area Marine Region office for each month of the season, within 60 days after the close of the month for which it is due.
(h) Permit applications. Each applicant for a herring eggs on kelp permit shall:
(1) Completely fill out and submit the required department Herring-Eggs-on-Kelp Permit Application (FG 1406 (10/04)) which is incorporated by reference herein (available at the department's San Francisco Bay Area Marine Region office), for the season to which the application applies. No person shall submit more than one application per season. Applications shall include a performance deposit as specified in subsection (i), and shall be delivered to the department's San Francisco Bay Area Marine Region office or postmarked no lather than 5 p.m. on August 1 of each year.
(2) Applications postmarked or presented after August 1 and before September 1 will result in a monetary penalty of $200 plus $50 for each state working day, or portion thereof, that the application is late, for a period of 30 days. Applications postmarked or presented after August 31 will not be eligible for renewal.
(3) Have submitted all fees from prior seasons.
(i) Each application shall include a performance deposit equal to 50% of the royalty price for the permit (i.e., allotment). The deposit shall be credited to the amount payable by the successful applicants and shall not be refundable. The performance deposit shall be returned to an applicant who does not qualify for a permit.
(j) Method of Take. Herring eggs may only be taken by harvesting giant kelp (Macrocystissp.), with spawn (i.e., eggs) attached, which has been artificially suspended using the following two methods: rafts and/or lines, a technique commonly known as the "open pond" method. For the purpose of this Section, a raft is defined as a temporary, mobile structure with a metal, wood or plastic frame. The total surface area of each raft is not to exceed 2,500 square feet. Rafts used by a licensed herring eggs on kelp permittee, prior to the 1995-96 season, are exempt from these size specifications. Such rafts may not be modified to exceed 2,500 square feet total surface area. Any new raft built after the 1995-96 herring eggs on kelp season must meet the specified dimensions. A line is defined as a piece of line of no more than 1200 feet in overall length that is suspended under a suitable permanent structure (e.g., pier or dock), or between two permanent structures (e.g., piers or docks). Kelp lines shall have floats or cork over the entire length of line. Each end of the line must be attached to a permanent structure. Kelp lines suspended from a permanent structure (e.g., pier or dock) shall not be placed as to hinder navigation. If kelp lines are suspended under a permanent structure (e.g., pier or dock), or if a raft is tied up to a permanent structure (e.g., pier, dock or rock wall, natural stationary shoreline structures), the permittee shall obtain prior written approval from the appropriate owners or controlling agency (e.g., wharfinger, Coast Guard, Navy or private owner). Buoys are not permanent structures.
(1) Not more than two rafts and/or two lines may be used per permit. Two permits may be simultaneously fished on the same raft if each line on the raft is clearly identified with the permit number of the owner. Each raft shall have a light at each corner that may be seen for at least a distance of 100 yards. Each raft shall be further identified with the herring eggs on kelp permit number in 14-inch high, 2-inch wide black Roman alphabet letters and Arabic numerals painted on a white background permanently affixed to the raft. Lines shall be marked at the beginning and the end with a light that may be seen for at least a distance of 100 yards. Each line shall be further identified with the herring eggs on kelp permit number in 14-inch high, 2-inch wide black Roman alphabet letters and Arabic numerals painted on a white background, permanently affixed to the line.
(2) Not more than ten sets of test kelp may be used per permit. Test kelp is defined as one stipe with blades, attached to a length of line for the purpose of testing for spawning activity. A set is defined as one length of line with test kelp attached. Each set must be attached to a permanent structure (e.g., pier, dock) and marked with the herring eggs on kelp permit number, in Roman alphabet letters and Arabic numerals at least 3 inches high, at a point above the waterline. No herring eggs on kelp shall be retained from test kelp sets for testing purposes that have not been weighed and recorded, pursuant to subsection 164(k).
(3) Rafts and/or lines may not be placed in any waters or areas otherwise closed or restricted to the use of herring gill nets operating pursuant to Section 163 of these regulations, except where written approval is granted by the owners or controlling agency (e.g., Navy, Coast Guard). Rafts and/or lines may be placed in Belvedere Cove or Richardson Bay, only if permittees tie their rafts and/or lines to a permanent structure (e.g., pier, dock or rock wall, natural stationary shoreline structures), and obtain prior written approval. Buoys are not permanent structures.
(4) The total amount of herring eggs on kelp that may be harvested by each permittee shall be based on the previous season's spawning population assessment of herring in San Francisco Bay, as determined by the department. This assessment is used to establish the overall herring fishing quotas pursuant to Section 163 of these regulations.
The total amount of herring eggs on kelp that may be harvested byan individual possessing a gill net permit issued pursuant to Section 163 of these regulations shall be 2.3 tons per season. The total amount of herring eggs on kelp that may be harvested by an individual possessing a "CH" permit issued pursuant to Section 163 of these regulations shall be 7.9 tons per season. (continued)