AB 944: California Spiny Lobster Commission.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-10-05
Existing law provides for various commissions to promote the marketing and production of agricultural or seafood commodities.
This bill would create the California Spiny Lobster Commission. The bill would specify the membership, powers, duties, and responsibilities of the commission. The commission would be authorized to approve the payment of a stipend to commission members, as specified. The commission also would be authorized to carry out programs of education, public information, promotion, marketing, and research relating to spiny lobster. The bill would authorize the commission to levy an assessment, as specified, on spiny lobster fishermen, as defined, and would authorize the expenditure of those moneys for the purposes of carrying out the commissions powers, duties, and responsibilities, thereby making an appropriation. The bill would require the Secretary of Food and Agriculture to review the annual budget and expenditures of the commission to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities. The bill, except as necessary to conduct an election, would not become operative until the fishermen of spiny lobster vote, by referendum, in favor of establishing the commission, as specified. The bill also would provide for the suspension of the operation of its provisions, for its repeal if certain time periods elapse after a referendum vote has failed, and, if the commission is established, for concluding the operations of the commission, as specified. The bill would create a misdemeanor for the rendering or furnishing of false reports; the secreting, destroying, or altering of records; the failure to furnish a report; or the failure or refusal to furnish to the commission information concerning the name and address of persons from whom spiny lobster are received or to whom they are provided.
By creating a new crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law provides for various commissions to promote the marketing and production of agricultural or seafood commodities.
This bill would create the California Spiny Lobster Commission. The bill would specify the membership, powers, duties, and responsibilities of the commission. The commission would be authorized to approve the payment of a stipend to commission members, as specified. The commission also would be authorized to carry out programs of education, public information, promotion, marketing, and research relating to spiny lobster. The bill would authorize the commission to levy an assessment, as specified, on spiny lobster fishermen, as defined, and would authorize the expenditure of those moneys for the purposes of carrying out the commissions powers, duties, and responsibilities, thereby making an appropriation. The bill would require the Secretary of Food and Agriculture to review the annual budget and expenditures of the commission to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities. The bill, except as necessary to conduct an election, would not become operative until the fishermen of spiny lobster vote, by referendum, in favor of establishing the commission, as specified. The bill also would provide for the suspension of the operation of its provisions, for its repeal if certain time periods elapse after a referendum vote has failed, and, if the commission is established, for concluding the operations of the commission, as specified. The bill would create a misdemeanor for the rendering or furnishing of false reports; the secreting, destroying, or altering of records; the failure to furnish a report; or the failure or refusal to furnish to the commission information concerning the name and address of persons from whom spiny lobster are received or to whom they are provided.
By creating a new crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law provides for various commissions to promote the marketing and production of agricultural or seafood commodities.
This bill would create the California Spiny Lobster Commission. The bill would specify the membership, powers, duties, and responsibilities of the commission. The commission would be authorized to approve payment of a stipend to commission members, as specified. The commission also would be authorized to carry out programs of education, public information, promotion, marketing, and research relating to spiny lobster. The bill would authorize the commission to levy an assessment, as specified, on spiny lobster fishermen, as defined, and would authorize the expenditure of those moneys for the purposes of carrying out the commissions powers, duties, and responsibilities, thereby making an appropriation. The bill would require the Secretary of Food and Agriculture to review the annual budget and expenditures of the commission to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities. The bill, except as necessary to conduct an election, would not become operative until the fishermen of spiny lobster vote, by referendum, in favor of establishing the commission, as specified. The bill also would provide for the suspension of the operation of its provisions, for its repeal if certain time periods elapse after a referendum vote has failed, and, if the commission is established, for concluding the operations of the commission, as specified. The bill would create a misdemeanor for the rendering or furnishing of false reports; the secreting, destroying, or altering of records; the failure to furnish a report; or the failure or refusal to furnish to the commission information concerning the name and address of persons from whom spiny lobster are received or to whom they are provided.
By creating a new crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law provides for various commissions to promote the marketing and production of agricultural or seafood commodities.
This bill would create the California Spiny Lobster Commission. The bill would specify the membership, powers, duties, and responsibilities of the commission. The commission would be authorized to approve payment of a stipend to commission members, as specified. The commission also would be authorized to carry out programs of education, public information, promotion, marketing, and research relating to spiny lobster. The bill would authorize the commission to levy an assessment, as specified, on spiny lobster fishermen, as defined, and would authorize the expenditure of those moneys for the purposes of carrying out the commissions powers, duties, and responsibilities, thereby making an appropriation. The bill would require the Secretary of Food and Agriculture to review the annual budget and expenditures of the commission to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities. The bill, except as necessary to conduct an election, would not become operative until the fishermen of spiny lobster vote, by referendum, in favor of establishing the commission, as specified. The bill also would provide for the suspension of the operation of its provisions, for its repeal if certain time periods elapse after a referendum vote has failed, and, if the commission is established, for concluding the operations of the commission, as specified. The bill would create a misdemeanor for the rendering or furnishing of false reports; the secreting, destroying, or altering of records; the failure to furnish a report; or the failure or refusal to furnish to the commission information concerning the name and address of persons from whom spiny lobster are received or to whom they are provided.
By creating a new crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law provides for various commissions to promote the marketing and production of agricultural or seafood commodities.
This bill would create the California Spiny Lobster Commission. The bill would specify the membership, powers, duties, and responsibilities of the commission. The commission would be authorized to approve payment of a stipend to commission members, as specified. The commission also would be authorized to carry out programs of education, public information, promotion, marketing, and research relating to spiny lobster. The bill would authorize the commission to levy an assessment, as specified, on spiny lobster fishermen, as defined, and would authorize the expenditure of those moneys for the purposes of carrying out the commissions powers, duties, and responsibilities. responsibilities, thereby making an appropriation. The bill would require the Secretary of Food and Agriculture to review the annual budget and expenditures of the commission to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities. The bill, except as necessary to conduct an election, would not become operative until the fishermen of spiny lobster vote, by referendum, in favor of establishing the commission, as specified. The bill also would provide for the suspension of the operation of its provisions and provisions, for its repeal if certain time periods elapse after a referendum vote has failed, and, if the commission is established, for concluding the operations of the commission, as specified. The bill would create a misdemeanor for the rendering or furnishing of false reports; the secreting, destroying, or altering of records; the failure to furnish a report; or the failure or refusal to furnish to the commission information concerning the name and address of persons from whom spiny lobster are received or to whom they are provided.
By creating a new crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law provides for various commissions to promote the marketing and production of agricultural or seafood commodities.
This bill would create the California Spiny Lobster Commission. The bill would specify the membership, powers, duties, and responsibilities of the commission. The commission would be authorized to approve payment of a stipend to commission members, as specified. The commission also would be authorized to carry out programs of education, public information, promotion, marketing, and research relating to spiny lobster. The bill would authorize the commission to levy an assessment, as specified, on spiny lobster fishermen, as defined, and would authorize the expenditure of those moneys for the purposes of carrying out the commissions powers, duties, and responsibilities. The bill would require the Secretary of Food and Agriculture to review the annual budget and expenditures of the commission to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities. The bill, except as necessary to conduct an election, would not become operative until the fishermen of spiny lobster, by referendum, vote lobster vote, by referendum, in favor of establishing the commission, as specified. The bill also would provide for the suspension of the operation of its provisions and for concluding the operations of the commission, as specified. The bill would create a misdemeanor for the rendering or furnishing of false reports; the secreting, destroying, or altering of records; the failure to furnish a report; or the failure or refusal to furnish to the commission information concerning the name and address of persons from whom spiny lobster are received or to whom they are provided.
By creating a new crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law provides for various commissions to promote the marketing and production of agricultural or seafood commodities.
This bill would create the California Spiny Lobster Commission. The bill would specify the membership, powers, duties, and responsibilities of the commission. The commission would be authorized to approve payment of a stipend to commission members, as specified. The commission also would be authorized to carry out programs of education, public information, promotion, marketing, and research relating to spiny lobster. The bill would authorize the commission to levy an assessment, as specified, on spiny lobster fishermen, as defined, and would authorize the expenditure of those moneys for the purposes of carrying out the commissions powers, duties, and responsibilities. The bill would require the Secretary of Food and Agriculture to review the annual budget and expenditures of the commission to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities. The bill, except as necessary to conduct an election, would not become operative until the fishermen of spiny lobster, by referendum, vote in favor of establishing the commission, as specified. The bill also would provide for the suspension of the operation of its provisions and for concluding the operations of the commission, as specified. The bill would create a misdemeanor for the rendering or furnishing of false reports; the secreting, destroying, or altering of records; the failure to furnish a report; or the failure or refusal to furnish to the commission information concerning the name and address of persons from whom spiny lobster are received or to whom they are provided.
By creating a new crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law authorizes the Secretary of Food and Agriculture to enter into cooperative agreements, as specified, for the purpose of administering various programs that promote and enhance agriculture, and authorizes the secretary to receive and expend funds, upon appropriation by the Legislature, for the above specified purposes.This bill would make nonsubstantive changes to those provisions.Existing law authorizes the Secretary of Food and Agriculture to enter into cooperative agreements, as specified, for the purpose of administering various programs that promote and enhance agriculture, and authorizes the secretary to receive and expend funds, upon appropriation by the Legislature, for the above specified purposes.
This bill would make nonsubstantive changes to those provisions.
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of Californias coast.
79150.5.The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
79151.The production of spiny lobster for domestic consumption and export is one of the leading segments of the states commercial fishing industry. To maintain this significant contribution to the states economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
79151.5.The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
79152.The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
79152.5.The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
79153.No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
79153.5.This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
79154.Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
79154.5.The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
2.Definitions79155.Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
79155.5.Commission means the California Spiny Lobster Commission.
79156.Ex officio means nonvoting members of the commission.
79156.5.Fiscal year and marketing season have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
79157.Fisherman or fishermen means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
79157.5.Handler means a person engaged with the following licensees:
(a)Licensed pursuant to Section 8033 of the Fish and Game Code.
(b)Licensed pursuant to Section 8034 of the Fish and Game Code.
(c)Licensed pursuant to Section 8035 of the Fish and Game Code.
(d)Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
79158.Spiny lobster means the Panulirus interruptus species.
79158.5.Spiny lobster fishery means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
3.The California Spiny Lobster Commission79160.(a)There is in the state government the California Spiny Lobster Commission. The commission shall be composed of six fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
(b)The fishermen members of the commission shall be elected as follows:
(1)One fisherman member shall be elected by the fishermen in that county from each of the following counties:
(A)County of San Diego.
(B)County of Orange.
(C)County of Ventura.
(D)County of Santa Barbara.
(E)County of Los Angeles.
(2)One at-large member who is a qualified fisherman from any county shall be elected by all fishermen statewide.
(c)Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
(d)The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
79160.5.(a)The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
(b)If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the commission.
(c)Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
(d)Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
79161.The commission or the secretary may bring an action for judicial relief from the secretarys written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
79161.5.When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretarys response may be a requirement that additional information be provided.
79162.The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretarys legal costs with regard to that action.
79162.5.Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event a change in status makes a member ineligible to serve or due to the death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
79163.A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
79163.5.Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
79164.A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
79164.5.The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
79165.(a)The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
(b)A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
79165.5.The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
79166.A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
79166.5.The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
79167.A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
79167.5.(a)All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall be expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
(b)Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
79168.The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
4.Powers and Duties of the Commission79170.The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
79170.5.The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
79171.The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
79171.5.The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
79172.The commission may fix the compensation for all employees of the commission.
79172.5.The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
79173.The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
79173.5.The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as appropriate, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
79174.The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster fishery industry.
79174.5.(a)The commission may carry out spiny lobster fishery industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the spiny lobster fishery, and employee and fisherman safety and may conduct market surveys and analyses.
(b)The commission may carry out public information programs regarding, but not limited to, the condition of and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
(c)The commission may adopt a spiny lobster fishery logo or trademark or other promotional tools consistent with this chapter and other applicable laws.
79175.The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance of and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management, cost-efficient production practices, and the marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
79175.5.The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
79176.The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
79176.5.The commission may collect information, including, but not limited to, spiny lobster fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
79177.The commission shall establish an assessment rate to defray the operating costs of the commission.
79177.5.(a)The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
(b)The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities.
79178.The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
79178.5.The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
79179.The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
79179.5.The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
79179.7.The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167, not to exceed seven hundred twenty-five dollars ($725) in any single month.
5.Implementation and Voting Procedures 79180.(a)Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request the assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
(b)A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a fisherman and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
(c)Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
79180.5.This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
(a)Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
(b)A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
79181.(a)The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
(b)Nonreceipt of a ballot shall not invalidate a referendum.
79181.5.(a)If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
(b)If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct a second implementation referendum vote one year or later following certification of the first vote, subject to the time constraints imposed by subdivision (a) of Section 79182.5.
79182.(a)Before a referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
(b)Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
79182.5.(a)If the first referendum vote conducted pursuant to this article fails and a second referendum vote is not conducted and certified as of the date that is two years later, this chapter is repealed as of that date, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(b)If a second referendum vote conducted pursuant to this article fails, this chapter is repealed as of the date that is six months later, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(c)For purposes of this section, the date on which a referendum vote fails shall be considered to be the date on which the secretary certifies pursuant to subdivision (b) of Section 79181.5 that a favorable vote has not been given.
6.Assessments and Records79185.(a)The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commissions operation shall be ten cents ($0.10) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
(b)An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
(c)Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
79185.5.Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
79186.(a)All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
(b)Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
79186.5.The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, the failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
79187.When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
79187.5.Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 11/2 percent interest per month on the unpaid balance.
79188.In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
79188.5.It is a misdemeanor for any person to do any of the following:
(a)Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
(b)Fail to render or furnish a report, statement, or record required by the commission.
(c)When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
(d)Secrete, destroy, or alter records required to be kept under this chapter.
79189.The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
79189.5.(a)The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
(b)A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
(c)Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. The injunction shall be stayed for a period of 30 days. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
79190.Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
79190.5.The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
7.Continuation or Suspension and Termination79195.Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
79195.5.If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
79196.The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
79196.5.(a)Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
(b)The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
(c)The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
(1)Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
(2)A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
79197.After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
79197.5.Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 3.The Legislature finds and declares that Section 1 of this act, which adds Sections 79178.5, 79180, and 79186 to the Food and Agricultural Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the personal and financial information of a person subject to the act, it is necessary that this act limit the publics right of access to that information.
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of Californias coast.
79150.5.The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
79151.The production of spiny lobster for domestic consumption and export is one of the leading segments of the states commercial fishing industry. To maintain this significant contribution to the states economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
79151.5.The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
79152.The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
79152.5.The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
79153.No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
79153.5.This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
79154.Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
79154.5.The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
2.Definitions79155.Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
79155.5.Commission means the California Spiny Lobster Commission.
79156.Ex officio means nonvoting members of the commission.
79156.5.Fiscal year and marketing season have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
79157.Fisherman or fishermen means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
79157.5.Handler means a person engaged with the following licensees:
(a)Licensed pursuant to Section 8033 of the Fish and Game Code.
(b)Licensed pursuant to Section 8034 of the Fish and Game Code.
(c)Licensed pursuant to Section 8035 of the Fish and Game Code.
(d)Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
79158.Spiny lobster means the Panulirus interruptus species.
79158.5.Spiny lobster fishery means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
3.The California Spiny Lobster Commission79160.(a)There is in the state government the California Spiny Lobster Commission. The commission shall be composed of six fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
(b)The fishermen members of the commission shall be elected as follows:
(1)One fisherman member shall be elected by the fishermen in that county from each of the following counties:
(A)County of San Diego.
(B)County of Orange.
(C)County of Ventura.
(D)County of Santa Barbara.
(E)County of Los Angeles.
(2)One at-large member who is a qualified fisherman from any county shall be elected by all fishermen statewide.
(c)Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
(d)The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
79160.5.(a)The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
(b)If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the commission.
(c)Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
(d)Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
79161.The commission or the secretary may bring an action for judicial relief from the secretarys written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
79161.5.When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretarys response may be a requirement that additional information be provided.
79162.The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretarys legal costs with regard to that action.
79162.5.Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event a change in status makes a member ineligible to serve or due to the death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
79163.A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
79163.5.Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
79164.A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
79164.5.The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
79165.(a)The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
(b)A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
79165.5.The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
79166.A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
79166.5.The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
79167.A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
79167.5.(a)All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall be expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
(b)Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
79168.The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
4.Powers and Duties of the Commission79170.The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
79170.5.The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
79171.The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
79171.5.The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
79172.The commission may fix the compensation for all employees of the commission.
79172.5.The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
79173.The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
79173.5.The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as appropriate, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
79174.The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster fishery industry.
79174.5.(a)The commission may carry out spiny lobster fishery industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the spiny lobster fishery, and employee and fisherman safety and may conduct market surveys and analyses.
(b)The commission may carry out public information programs regarding, but not limited to, the condition of and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
(c)The commission may adopt a spiny lobster fishery logo or trademark or other promotional tools consistent with this chapter and other applicable laws.
79175.The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance of and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management, cost-efficient production practices, and the marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
79175.5.The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
79176.The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
79176.5.The commission may collect information, including, but not limited to, spiny lobster fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
79177.The commission shall establish an assessment rate to defray the operating costs of the commission.
79177.5.(a)The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
(b)The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities.
79178.The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
79178.5.The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
79179.The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
79179.5.The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
79179.7.The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167, not to exceed seven hundred twenty-five dollars ($725) in any single month.
5.Implementation and Voting Procedures 79180.(a)Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request the assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
(b)A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a fisherman and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
(c)Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
79180.5.This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
(a)Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
(b)A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
79181.(a)The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
(b)Nonreceipt of a ballot shall not invalidate a referendum.
79181.5.(a)If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
(b)If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct a second implementation referendum vote one year or later following certification of the first vote, subject to the time constraints imposed by subdivision (a) of Section 79182.5.
79182.(a)Before a referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
(b)Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
79182.5.(a)If the first referendum vote conducted pursuant to this article fails and a second referendum vote is not conducted and certified as of the date that is two years later, this chapter is repealed as of that date, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(b)If a second referendum vote conducted pursuant to this article fails, this chapter is repealed as of the date that is six months later, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(c)For purposes of this section, the date on which a referendum vote fails shall be considered to be the date on which the secretary certifies pursuant to subdivision (b) of Section 79181.5 that a favorable vote has not been given.
6.Assessments and Records79185.(a)The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commissions operation shall be ten cents ($0.10) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
(b)An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
(c)Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
79185.5.Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
79186.(a)All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
(b)Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
79186.5.The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, the failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
79187.When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
79187.5.Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 11/2 percent interest per month on the unpaid balance.
79188.In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
79188.5.It is a misdemeanor for any person to do any of the following:
(a)Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
(b)Fail to render or furnish a report, statement, or record required by the commission.
(c)When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
(d)Secrete, destroy, or alter records required to be kept under this chapter.
79189.The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
79189.5.(a)The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
(b)A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
(c)Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. The injunction shall be stayed for a period of 30 days. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
79190.Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
79190.5.The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
7.Continuation or Suspension and Termination79195.Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
79195.5.If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
79196.The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
79196.5.(a)Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
(b)The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
(c)The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
(1)Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
(2)A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
79197.After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
79197.5.Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 3.The Legislature finds and declares that Section 1 of this act, which adds Sections 79178.5, 79180, and 79186 to the Food and Agricultural Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the personal and financial information of a person subject to the act, it is necessary that this act limit the publics right of access to that information.
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of Californias coast.
79150.5.The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
79151.The production of spiny lobster for domestic consumption and export is one of the leading segments of the states commercial fishing industry. To maintain this significant contribution to the states economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
79151.5.The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
79152.The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
79152.5.The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
79153.No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
79153.5.This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
79154.Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
79154.5.The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
2.Definitions79155.Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
79155.5.Commission means the California Spiny Lobster Commission.
79156.Ex officio means nonvoting members of the commission.
79156.5.Fiscal year and marketing season have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
79157.Fisherman or fishermen means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
79157.5.Handler means a person engaged with the following licensees:
(a)Licensed pursuant to Section 8033 of the Fish and Game Code.
(b)Licensed pursuant to Section 8034 of the Fish and Game Code.
(c)Licensed pursuant to Section 8035 of the Fish and Game Code.
(d)Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
79158.Spiny lobster means the Panulirus interruptus species.
79158.5.Spiny lobster fishery means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
3.The California Spiny Lobster Commission79160.(a)There is in the state government the California Spiny Lobster Commission. The commission shall be composed of six fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
(b)The fishermen members of the commission shall be elected as follows:
(1)One fisherman member shall be elected by the fishermen in that county from each of the following counties:
(A)County of San Diego.
(B)County of Orange.
(C)County of Ventura.
(D)County of Santa Barbara.
(E)County of Los Angeles.
(2)One at-large member who is a qualified fisherman from any county shall be elected by all fishermen statewide.
(c)Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
(d)The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
79160.5.(a)The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
(b)If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the commission.
(c)Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
(d)Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
79161.The commission or the secretary may bring an action for judicial relief from the secretarys written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
79161.5.When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretarys response may be a requirement that additional information be provided.
79162.The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretarys legal costs with regard to that action.
79162.5.Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event a change in status makes a member ineligible to serve or due to the death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
79163.A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
79163.5.Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
79164.A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
79164.5.The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
79165.(a)The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
(b)A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
79165.5.The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
79166.A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
79166.5.The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
79167.A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
79167.5.(a)All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall be expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
(b)Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
79168.The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
4.Powers and Duties of the Commission79170.The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
79170.5.The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
79171.The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
79171.5.The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
79172.The commission may fix the compensation for all employees of the commission.
79172.5.The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
79173.The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
79173.5.The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as appropriate, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
79174.The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster fishery industry.
79174.5.(a)The commission may carry out spiny lobster fishery industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the spiny lobster fishery, and employee and fisherman safety and may conduct market surveys and analyses.
(b)The commission may carry out public information programs regarding, but not limited to, the condition of and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
(c)The commission may adopt a spiny lobster fishery logo or trademark or other promotional tools consistent with this chapter and other applicable laws.
79175.The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance of and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management, cost-efficient production practices, and the marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
79175.5.The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
79176.The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
79176.5.The commission may collect information, including, but not limited to, spiny lobster fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
79177.The commission shall establish an assessment rate to defray the operating costs of the commission.
79177.5.(a)The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
(b)The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities.
79178.The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
79178.5.The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
79179.The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
79179.5.The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
79179.7.The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167, not to exceed seven hundred twenty-five dollars ($725) in any single month.
5.Implementation and Voting Procedures 79180.(a)Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request the assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
(b)A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a fisherman and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
(c)Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
79180.5.This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
(a)Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
(b)A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
79181.(a)The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
(b)Nonreceipt of a ballot shall not invalidate a referendum.
79181.5.(a)If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
(b)If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct a second implementation referendum vote one year or later following certification of the first vote, subject to the time constraints imposed by subdivision (a) of Section 79182.5.
79182.(a)Before a referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
(b)Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
79182.5.(a)If the first referendum vote conducted pursuant to this article fails and a second referendum vote is not conducted and certified as of the date that is two years later, this chapter is repealed as of that date, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(b)If a second referendum vote conducted pursuant to this article fails, this chapter is repealed as of the date that is six months later, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(c)For purposes of this section, the date on which a referendum vote fails shall be considered to be the date on which the secretary certifies pursuant to subdivision (b) of Section 79181.5 that a favorable vote has not been given.
6.Assessments and Records79185.(a)The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commissions operation shall be ten cents ($0.10) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
(b)An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
(c)Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
79185.5.Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
79186.(a)All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
(b)Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
79186.5.The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, the failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
79187.When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
79187.5.Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 11/2 percent interest per month on the unpaid balance.
79188.In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
79188.5.It is a misdemeanor for any person to do any of the following:
(a)Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
(b)Fail to render or furnish a report, statement, or record required by the commission.
(c)When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
(d)Secrete, destroy, or alter records required to be kept under this chapter.
79189.The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
79189.5.(a)The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
(b)A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
(c)Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. The injunction shall be stayed for a period of 30 days. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
79190.Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
79190.5.The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
7.Continuation or Suspension and Termination79195.Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
79195.5.If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
79196.The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
79196.5.(a)Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
(b)The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
(c)The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
(1)Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
(2)A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
79197.After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
79197.5.Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 3.The Legislature finds and declares that Section 1 of this act, which adds Sections 79178.5, 79180, and 79186 to the Food and Agricultural Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the personal and financial information of a person subject to the act, it is necessary that this act limit the publics right of access to that information.
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of Californias coast.
79150.5.The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
79151.The production of spiny lobster for domestic consumption and export is one of the leading segments of the states commercial fishing industry. To maintain this significant contribution to the states economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
79151.5.The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
79152.The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
79152.5.The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
79153.No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
79153.5.This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
79154.Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
79154.5.The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
2.Definitions79155.Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
79155.5.Commission means the California Spiny Lobster Commission.
79156.Ex officio means nonvoting members of the commission.
79156.5.Fiscal year and marketing season have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
79157.Fisherman or fishermen means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
79157.5.Handler means a person engaged with the following licensees:
(a)Licensed pursuant to Section 8033 of the Fish and Game Code.
(b)Licensed pursuant to Section 8034 of the Fish and Game Code.
(c)Licensed pursuant to Section 8035 of the Fish and Game Code.
(d)Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
79158.Spiny lobster means the Panulirus interruptus species.
79158.5.Spiny lobster fishery means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
3.The California Spiny Lobster Commission79160.(a)There is in the state government the California Spiny Lobster Commission. The commission shall be composed of six fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
(b)The fishermen members of the commission shall be elected as follows:
(1)One fisherman member shall be elected by the fishermen in that county from each of the following counties:
(A)County of San Diego.
(B)County of Orange.
(C)County of Ventura.
(D)County of Santa Barbara.
(E)County of Los Angeles.
(2)One at-large member who is a qualified fisherman from any county shall be elected by all fisherman fishermen statewide.
(c)Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
(d)The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
79160.5.(a)The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
(b)If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the commission.
(c)Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
(d)Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
79161.The commission or the secretary may bring an action for judicial relief from the secretarys written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
79161.5.When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretarys response may be a requirement that additional information be provided.
79162.The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretarys legal costs with regard to that action.
79162.5.Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event a change in status makes a member ineligible to serve or due to the death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
79163.A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
79163.5.Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
79164.A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
79164.5.The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
79165.(a)The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
(b)A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
79165.5.The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
79166.A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
79166.5.The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
79167.A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
79167.5.(a)All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall be expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
(b)Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
79168.The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
4.Powers and Duties of the Commission79170.The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
79170.5.The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
79171.The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
79171.5.The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
79172.The commission may fix the compensation for all employees of the commission.
79172.5.The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
79173.The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
79173.5.The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as appropriate, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
79174.The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster fishery industry.
79174.5.(a)The commission may carry out spiny lobster fishery industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the spiny lobster fishery, and employee and fisherman safety and may conduct market surveys and analyses.
(b)The commission may carry out public information programs regarding, but not limited to, the condition of and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
(c)The commission may adopt a spiny lobster fishery logo or trademark or other promotional tools consistent with this chapter and other applicable laws.
79175.The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance of and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management management, cost-efficient production practices, and the marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
79175.5.The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
79176.The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
79176.5.The commission may collect information, including, but not limited to, spiny lobster fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
79177.The commission shall establish an assessment rate to defray the operating costs of the commission.
79177.5.(a)The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
(b)The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities.
79178.The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
79178.5.The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
79179.The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
79179.5.The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
79179.7.The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167, not to exceed seven hundred twenty-five dollars ($725) in any single month.
5.Implementation and Voting Procedures 79180.(a)Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request the assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
(b)A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a fisherman and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
(c)Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
79180.5.This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
(a)Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
(b)A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
79181.(a)The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
(b)Nonreceipt of a ballot shall not invalidate a referendum.
79181.5.(a)If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
(b)If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct a second implementation referendum vote one year or later following certification of the first vote, subject to the time constraints imposed by subdivision (a) of Section 79182.5.
79182.(a)Before a referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
(b)Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
79182.5.(a)If the first referendum vote conducted pursuant to this article fails and a second referendum vote is not conducted and certified as of the date that is two years later, this chapter is repealed as of that date, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(b)If a second referendum vote conducted pursuant to this article fails, this chapter is repealed as of the date that is six months later, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(c)For purposes of this section, the date on which a referendum vote fails shall be considered to be the date on which the secretary certifies pursuant to subdivision (b) of Section 79181.5 that a favorable vote has not been given.
6.Assessments and Records79185.(a)The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commissions operation shall be twenty-five cents ($0.25) ten cents ($0.10) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
(b)An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
(c)Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
79185.5.Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
79186.(a)All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
(b)Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
79186.5.The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, the failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
79187.When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
79187.5.Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 11/2 percent interest per month on the unpaid balance.
79188.In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
79188.5.It is a misdemeanor for any person to do any of the following:
(a)Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
(b)Fail to render or furnish a report, statement, or record required by the commission.
(c)When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
(d)Secrete, destroy, or alter records required to be kept under this chapter.
79189.The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
79189.5.(a)The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
(b)A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
(c)Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
79190.Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
79190.5.The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
7.Continuation or Suspension and Termination79195.Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
79195.5.If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
79196.The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
79196.5.(a)Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
(b)The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
(c)The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
(1)Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
(2)A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
79197.After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
79197.5.Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 3.The Legislature finds and declares that Section 1 of this act, which adds Sections 79178.5, 79180, and 79186 to the Food and Agricultural Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the personal and financial information of a person subject to the act, it is necessary that this act limit the publics right of access to that information.
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of Californias coast.
79150.5.The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
79151.The production of spiny lobster for domestic consumption and export is one of the leading segments of the states commercial fishing industry. To maintain this significant contribution to the states economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
79151.5.The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
79152.The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
79152.5.The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
79153.No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
79153.5.This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
79154.Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
79154.5.The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
2.Definitions79155.Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
79155.5.Commission means the California Spiny Lobster Commission.
79156.Ex officio means nonvoting members of the commission.
79156.5.Fiscal year and marketing season have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
79157.Fisherman or fishermen means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
79157.5.Handler means a person engaged with the following licensees:
(a)Licensed pursuant to Section 8033 of the Fish and Game Code.
(b)Licensed pursuant to Section 8034 of the Fish and Game Code.
(c)Licensed pursuant to Section 8035 of the Fish and Game Code.
(d)Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
79158.Spiny lobster means the Panulirus interruptus species.
79158.5.Spiny lobster fishery means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
3.The California Spiny Lobster Commission79160.(a)There is in the state government the California Spiny Lobster Commission. The commission shall be composed of six fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
(b)The fishermen members of the commission shall be elected as follows:
(1)One fisherman member shall be elected by the fishermen in that county from each of the following counties:
(A)County of San Diego.
(B)County of Orange.
(C)County of Ventura.
(D)County of Santa Barbara.
(E)County of Los Angeles.
(2)One at-large member who is a qualified fisherman from any county shall be elected by all fisherman statewide.
(c)Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
(d)The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
79160.5.(a)The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
(b)If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the commission.
(c)Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
(d)Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
79161.The commission or the secretary may bring an action for judicial relief from the secretarys written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
79161.5.When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretarys response may be a requirement that additional information be provided.
79162.The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretarys legal costs with regard to that action.
79162.5.Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event a change in status makes a member ineligible to serve or due to the death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
79163.A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
79163.5.Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
79164.A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
79164.5.The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
79165.(a)The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
(b)A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
79165.5.The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
79166.A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
79166.5.The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
79167.A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
79167.5.(a)All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall by be expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
(b)Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
79168.The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
4.Powers and Duties of the Commission79170.The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
79170.5.The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
79171.The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
79171.5.The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
79172.The commission may fix the compensation for all employees of the commission.
79172.5.The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
79173.The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
79173.5.The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as appropriate, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
79174.The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster fishery industry.
79174.5.(a)The commission may carry out spiny lobster industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the spiny lobster fishery, and employee and fisherman safety and may conduct market surveys and analyses.
(b)The commission may carry out public information programs regarding, but not limited to, the condition and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
(c)The commission may adopt a spiny lobster fishery logo or trademark or other promotional tools consistent with this chapter and other applicable laws.
79175.The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management cost-efficient production practices, and the marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
79175.5.The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
79176.The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
79176.5.The commission may collect information, including, but not limited to, spiny lobster fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
79177.The commission shall establish an assessment rate to defray the operating costs of the commission.
79177.5.(a)The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
(b)The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities.
79178.The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
79178.5.The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
79179.The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
79179.5.The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
79179.7.The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167.5, 79167, not to exceed seven hundred twenty-five dollars ($725) in any single month.
5.Implementation and Voting Procedures 79180.(a)Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request the assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
(b)A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a fisherman and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
(c)Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
79180.5.This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
(a)Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
(b)A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
79181.(a)The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
(b)Nonreceipt of a ballot shall not invalidate a referendum.
79181.5.(a)If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
(b)If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other a second implementation referendum votes vote one year or more later following certification of a previous vote. the first vote, subject to the time constraints imposed by subdivision (a) of Section 79182.5.
79182.(a)Before the a referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
(b)Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
79182.5.(a)If the first referendum vote conducted pursuant to this article fails and a second referendum vote is not conducted and certified as of the date that is two years later, this chapter is repealed as of that date, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(b)If a second referendum vote conducted pursuant to this article fails, this chapter is repealed as of the date that is six months later, unless a later enacted statute that is enacted before that date, deletes or extends that date.
(c)For purposes of this section, the date on which a referendum vote fails shall be considered to be the date on which the secretary certifies pursuant to subdivision (b) of Section 79181.5 that a favorable vote has not been given.
6.Assessments and Records79185.(a)The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commissions operation shall be twenty-five cents ($0.25) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
(b)An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
(c)Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
79185.5.Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
79186.(a)All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
(b)Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
79186.5.The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, the failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
79187.When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
79187.5.Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 11/2 percent interest per month on the unpaid balance.
79188.In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
79188.5.It is a misdemeanor for any person to do any of the following:
(a)Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
(b)Fail to render or furnish a report, statement, or record required by the commission.
(c)When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
(d)Secrete, destroy, or alter records required to be kept under this chapter.
79189.The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
79189.5.(a)The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
(b)A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
(c)Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
79190.Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
79190.5.The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
7.Continuation or Suspension and Termination79195.Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
79195.5.If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
79196.The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
79196.5.(a)Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
(b)The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
(c)The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
(1)Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
(2)A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
79197.After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
79197.5.Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 3.The Legislature finds and declares that Section 1 of this act, which adds Sections 79178.5, 79180, and 79186 to the Food and Agricultural Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the personal and financial information of a person subject to the act, it is necessary that this act limit the publics right of access to that information.
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of Californias coast.
79150.5.The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
79151.The production of spiny lobster for domestic consumption and export is one of the leading segments of the states commercial fishing industry. To maintain this significant contribution to the states economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
79151.5.The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
79152.The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
79152.5.The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
79153.No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
79153.5.This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
79154.Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
79154.5.The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
2.Definitions79155.Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
79155.5.Commission means the California Spiny Lobster Commission.
79156.Ex officio means nonvoting members of the commission.
79156.5.Fiscal year and marketing season have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
79157.Fisherman or fishermen means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
79157.5.Handler means a person engaged with the following licensees:
(a)Licensed pursuant to Section 8033 of the Fish and Game Code.
(b)Licensed pursuant to Section 8034 of the Fish and Game Code.
(c)Licensed pursuant to Section 8035 of the Fish and Game Code.
(d)Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
79158.Spiny lobster means the Panulirus interruptus species.
79158.5.Spiny lobster fishery means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
3.The California Spiny Lobster Commission79160.(a)There is in the state government the California Spiny Lobster Commission. The commission shall be composed of 6 six fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
(b)(1)Except as provided in paragraph (2), one fisherman member shall be elected from each of the following:(b)The fishermen members of the commission shall be elected as follows:
(1)One fisherman member shall be elected by the fishermen in that county from each of the following counties:
(A)County of San Diego.
(B)County of Orange.
(C)County of Ventura.
(D)County of Santa Barbara.
(2)At the time of the election of the initial commissioners, two fishermen members shall be elected from the county with the largest amount of production of spiny lobster in the prior marketing season. Every six years thereafter, the production totals from each county will be reviewed and the membership of the commission shall be modified accordingly.(E)County of Los Angeles.
(2)One at-large member who is a qualified fisherman from any county shall be elected by all fisherman statewide.
(c)Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
(d)The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
79160.5.(a)The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
(b)If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the commission.
(c)Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
(d)Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
79161.The commission or the secretary may bring an action for judicial relief from the secretarys written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
79161.5.When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretarys response may be a requirement that additional information be provided.
79162.The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretarys legal costs with regard to that action.
79162.5.Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event of a change in status makes a member ineligible to serve or due to the death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
79163.A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
79163.5.Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
79164.A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
79164.5.The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
79165.(a)The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
(b)A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
79165.5.The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
79166.A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
79166.5.The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
79167.A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except nonvoting ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
79167.5.(a)All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall by expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
(b)Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
79168.The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
4.Powers and Duties of the Commission79170.The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
79170.5.The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
79171.The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
79171.5.The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
79172.The commission may fix the compensation for all employees of the commission.
79172.5.The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
79173.The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
79173.5.The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary may, as appropriate, secretary, as appropriate, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
79174.The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster commercial fishing fishery industry.
79174.5.(a)The commission may carry out spiny lobster industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the spiny lobster fishery, and employee and fisherman safety and may conduct market surveys and analyses.
(b)The commission may carry out public information programs regarding, but not limited to, the condition and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
(c)The commission may adopt a spiny lobster fishery logo or trademark, trademark or other promotional tools consistent with this chapter and other applicable laws.
79175.The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management cost-efficient production practices, and the marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
79175.5.The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
79176.The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
79176.5.The commission may collect information, including, but not limited to, spiny lobster fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
79177.The commission shall establish an assessment rate to defray the operating costs of the commission.
79177.5.(a)The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
(b)The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities.
79178.The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
79178.5.The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
79179.The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
79179.5.The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
79179.7.The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167.5, not to exceed seven hundred twenty-five dollars ($725) in any single month.
5.Implementation and Voting Procedures 79180.(a)Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request the assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other provision of law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
(b)A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement, statement identifying himself or herself as a fisherman, fisherman and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
(c)Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
79180.5.This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
(a)Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
(b)A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
79181.(a)The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
(b)Nonreceipt of a ballot shall not invalidate a referendum.
79181.5.(a)If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
(b)If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other implementation referendum votes one year or more following certification of a previous vote.
79182.(a)Before the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
(b)Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
6.Assessments and Records79185.(a)The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commissions operation shall be twenty-five cents ($0.25) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
(b)An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
(c)Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
79185.5.Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
79186.(a)All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
(b)Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
79186.5.The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, the failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
79187.When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
79187.5.Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 11/2 percent interest per month on the unpaid balance.
79188.In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
79188.5.It is a misdemeanor for any person to do any of the following:
(a)Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
(b)Fail to render or furnish a report, statement, or record required by the commission.
(c)When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
(d)Secrete, destroy, or alter records required to be kept under this chapter.
79189.The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
79189.5.(a)The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
(b)A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
(c)Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until there is full compliance and satisfaction of the judgment. the judgment is fully complied with and satisfied. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
79190.Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
79190.5.The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
7.Continuation or Suspension and Termination79195.Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
79195.5.If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
79196.The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
79196.5.(a)Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
(b)The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
(c)The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
(1)Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
(2)A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
79197.After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
79197.5.Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of Californias coast.
79150.5.The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
79151.The production of spiny lobster for domestic consumption and export is one of the leading segments of the states commercial fishing industry. To maintain this significant contribution to the states economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
79151.5.The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
79152.The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
79152.5.The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
79153.No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
79153.5.This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
79154.Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
79154.5.The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
2.Definitions79155.Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
79155.5.Commission means the California Spiny Lobster Commission.
79156.Ex officio means nonvoting members of the commission.
79156.5.Fiscal year and marketing season have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
79157.Fisherman or fishermen means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
79157.5.Handler means a person engaged with the following licensees:
(a)Licensed pursuant to Section 8033 of the Fish and Game Code.
(b)Licensed pursuant to Section 8034 of the Fish and Game Code.
(c)Licensed pursuant to Section 8035 of the Fish and Game Code.
(d)Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
79158.Spiny lobster means the Panulirus interruptus species.
79158.5.Spiny lobster fishery means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
3.The California Spiny Lobster Commission79160.(a)There is in the state government the California Spiny Lobster Commission. The commission shall be composed of 6 fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
(b)(1)Except as provided in paragraph (2), one fisherman member shall be elected from each of the following:
(A)County of San Diego.
(B)County of Orange.
(C)County of Ventura.
(D)County of Santa Barbara.
(2)At the time of the election of the initial commissioners, two fishermen members shall be elected from the county with the largest amount of production of spiny lobster in the prior marketing season. Every six years thereafter, the production totals from each county will be reviewed and the membership of the commission shall be modified accordingly.
(c)Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
(d)The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
79160.5.(a)The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
(b)If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
(c)Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
(d)Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
79161.The commission or the secretary may bring an action for judicial relief from the secretarys written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
79161.5.When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretarys response may be a requirement that additional information be provided.
79162.The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for payment of the secretarys legal costs with regard to that action.
79162.5.Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event of a change in status makes a member ineligible to serve or due to death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
79163.A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
79163.5.Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
79164.A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
79164.5.The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
79165.(a)The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
(b)A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
79165.5.The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
79166.A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
79166.5.The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
79167.A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except nonvoting members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
79167.5.(a)All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall by expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
(b)Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
79168.The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
4.Powers and Duties of the Commission79170.The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
79170.5.The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
79171.The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
79171.5.The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
79172.The commission may fix the compensation for all employees of the commission.
79172.5.The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
79173.The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
79173.5.The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary may, as appropriate, conduct or cause to be conducted a fiscal and compliance audit of the commission.
79174.The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster commercial fishing industry.
79174.5.(a)The commission may carry out industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the fishery, and employee and fisherman safety and may conduct market surveys and analyses.
(b)The commission may carry out public information programs regarding, but not limited to, the condition and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
(c)The commission may adopt a spiny lobster fishery logo or trademark, or other promotional tools consistent with this chapter and other applicable laws.
79175.The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management cost-efficient production practices, and marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
79175.5.The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
79176.The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
79176.5.The commission may collect information, including, but not limited to, fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
79177.The commission shall establish an assessment rate to defray the operating costs of the commission.
79177.5.(a)The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
(b)The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commissions activities.
79178.The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
79178.5.The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
79179.The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
79179.5.The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
79179.7.The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167.5, not to exceed seven hundred twenty-five dollars ($725) in any single month.
5.Implementation and Voting Procedures 79180.(a)Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other provision of law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
(b)A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement, identifying himself or herself as a fisherman, and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
(c)Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
79180.5.This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
(a)Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
(b)A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
79181.(a)The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
(b)Nonreceipt of a ballot shall not invalidate a referendum.
79181.5.(a)If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
(b)If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other implementation referendum votes one year or more following certification of a previous vote.
79182.(a)Before the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
(b)Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
6.Assessments and Records79185.(a)The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commissions operation shall be twenty-five cents ($0.25) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
(b)An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
(c)Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
79185.5.Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
79186.(a)All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
(b)Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
79186.5.The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
79187.When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
79187.5.Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 11/2 percent interest per month on the unpaid balance.
79188.In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
79188.5.It is a misdemeanor for any person to do any of the following:
(a)Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
(b)Fail to render or furnish a report, statement, or record required by the commission.
(c)When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
(d)Secrete, destroy, or alter records required to be kept under this chapter.
79189.The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
79189.5.(a)The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
(b)A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
(c)Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
79190.Any action by the commission for any violation of this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
79190.5.The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
7.Continuation or Suspension and Termination79195.Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
79195.5.If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
79196.The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
79196.5.(a)Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
(b)The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
(c)The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
(1)Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
(2)A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
79197.After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the prorated refund to these persons, any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
79197.5.Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all eligible persons affected by the suspension whose names and addresses are on file.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SECTION 1.Section 485 of the Food and Agricultural Code is amended to read:485.(a)The secretary may enter into cooperative agreements with private entities, and with boards, bureaus, commissions, or departments of this state or of the United States, for the purpose of administering compensation, conservation, disaster assistance, economic assistance, education, environmental enhancement, indemnification, market promotion, research, and similar programs that promote and enhance agriculture.(b)Upon appropriation by the Legislature, the secretary may receive and expend federal funds and any nonstate matching funds made available to the department for the purposes specified in subdivision (a) via grant, interagency agreement, or otherwise. These funds shall be administered in accordance with Section 221.(c)(1)Grant awards shall be made by the department on a competitive basis established by the department wherever possible.(2)Any grant awarded on an alternative basis that is not competitive shall comply with all applicable state requirements, orders, and guidelines.(3)Decisions of the secretary relating to the award of grants shall be final.(d)Procedures, forms, and guidelines established for these grant programs, including the application process, are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(e)If the secretary expends funds or awards grants for the study of protocols for crops to meet standards for transport out of a quarantine area, the following shall apply:(1)Primary consideration shall be given to crops that are most at risk from the imposition of a quarantine and for which protocols do not currently exist, as long as the application otherwise meets reasonable scientific standards.(2)The department may consult with individuals or representatives of the agriculture industry, and academic or scientific individuals or organizations, to establish criteria and assist in the recommendation of any expenditure of funds or the award of grants.(a)The secretary may enter into cooperative agreements with private entities, and with boards, bureaus, commissions, or departments of this state or of the United States, for the purpose of administering compensation, conservation, disaster assistance, economic assistance, education, environmental enhancement, indemnification, market promotion, research, and similar programs that promote and enhance agriculture.
(b)Upon appropriation by the Legislature, the secretary may receive and expend federal funds and any nonstate matching funds made available to the department for the purposes specified above in subdivision (a) via grant, interagency agreement, or otherwise, and these funds otherwise. These funds shall be administered in accordance with Section 221.
(c)(1)Grant awards shall be made by the department on a competitive basis established by the department wherever possible.
(2)Any grant awarded on an alternative basis that is not competitive shall comply with all applicable state requirements, orders, and guidelines.
(3)Decisions of the secretary relating to the award of grants shall be final.
(d)Procedures, forms, and guidelines established for these grant programs, including the application process, are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(e)If the secretary expends funds or awards grants for the study of protocols for crops to meet standards for transport out of a quarantine area, the following shall apply:
(1)Primary consideration shall be given to crops that are most at risk from the imposition of a quarantine and for which protocols do not currently exist, as long as the application otherwise meets reasonable scientific standards.
(2)The department may consult with individuals or representatives of the agriculture industry, and academic or scientific individuals, individuals or organizations, to establish criteria and assist in the recommendation of any expenditure of funds or the award of grants.
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Date
|
Status
|
|---|---|
| Oct 5, 2017 | Chaptered by Secretary of State - Chapter 503, Statutes of 2017. |
| Oct 5, 2017 | Approved by the Governor. |
| Sep 19, 2017 | Enrolled and presented to the Governor at 3 p.m. |
| Sep 11, 2017 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Sep 6, 2017 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after September 8 pursuant to Assembly Rule 77. |
| Sep 6, 2017 | Read third time. Passed. Ordered to the Assembly. |
| Aug 22, 2017 | Read second time. Ordered to third reading. |
| Aug 21, 2017 | From committee: Do pass. (Ayes 6. Noes 0.) (August 21). |
| Jul 18, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 17, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (July 11). |
| Jun 20, 2017 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 5. Noes 0.) (June 20). Re-referred to Com. on JUD. |
| Jun 13, 2017 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on AGRI. |
| Jun 8, 2017 | Referred to Coms. on AGRI. and JUD. |
| May 30, 2017 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 30, 2017 | Read third time. Passed. Ordered to the Senate. (Ayes 71. Noes 4. Page 1797.) |
| May 25, 2017 | Read second time. Ordered to third reading. |
| May 24, 2017 | From committee: Do pass. (Ayes 16. Noes 0.) (May 24). |
| May 1, 2017 | Re-referred to Com. on APPR. |
| Apr 27, 2017 | Read second time and amended. |
| Apr 26, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 15. Noes 0.) (April 25). |
| Apr 18, 2017 | Re-referred to Com. on W.,P., & W. |
| Apr 17, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on W.,P., & W. Read second time and amended. |
| Mar 29, 2017 | Re-referred to Com. on W.,P., & W. |
| Mar 28, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on W.,P., & W. Read second time and amended. |
| Mar 27, 2017 | Referred to Com. on W.,P., & W. |
| Feb 17, 2017 | From printer. May be heard in committee March 19. |
| Feb 16, 2017 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2017 | AB 944 LIMÓN Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Sep 6, 2017 | Assembly 3rd Reading AB944 Limón By Atkins | Senate Floor |
Passed |
|
| Aug 21, 2017 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Jun 20, 2017 | Do pass, but first be re-referred to the Committee on [Judiciary] | Senate Standing Committee on Agriculture |
Passed |
|
| May 30, 2017 | AB 944 LIMÓN Assembly Third Reading | Assembly Floor |
Passed |
|
| May 24, 2017 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 25, 2017 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Water, Parks, and Wildlife |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California Sea Urchin Commission | ** Support | Aug 22, 2017 |
| Chamber of Commerce of the Santa Barbara Region | ** Support | Jun 16, 2017 |
| City of Santa Barbara | ** Support | Aug 22, 2017 |
| Commercial Fishermen of Santa Barbara | ** Support | Aug 22, 2017 |
| Individuals | ** Support | May 24, 2017 |
| Santa Barbara Chamber Of Commerce | ** Support | Aug 22, 2017 |
| Sonoma-Marin Saving Water Partnership | ** Support | Apr 21, 2017 |
| The Nature Conservancy | ** Support | Aug 22, 2017 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 944
Author:(Limón)
As Amended Ver:July 18, 2017
Majority vote
ASSEMBLY: | 71-4 | (May 30, 2017) | SENATE: | 31-6 | (September 6, 2017) |
Original Committee Reference: W., P., & W.
SUMMARY: Defines the California Spiny Lobster Commission within state government. Specifically, this bill:
- Makes findings regarding participants, both fishermen and handlers, of the spiny lobster fishery.
- Makes findings regarding the need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced in the industry, and the opportunities available to balance spiny lobster production and protection of the marine resources. Declares that the establishment of this commission will meet this need.
- Makes findings that the establishment of the commission is necessary for the efficient creation and management of a research program to develop improved harvest and process practices, and integrated fishery management.
- Declares that the establishment of the commission will enhance the ability of the industry to promote responsible fishery management regulations, including moving the industry toward a sustainable position, increasing consumer value and economic returns.
- Exempts actions of the Commission from the Cartwright Act, the Unfair Practices Act, or any statutory or common law against monopolies or combinations in restraint of trade.
- Defines a "fisherman" or "fishermen" as a person or persons holding various valid commercial harvest licenses, regardless of gender.
- Defines "spiny lobster fishery" as all activity regarding the fishery including harvest, receiving, processing, manufacturing, distribution, and other economic and commercial activity.
- Establishes the commission in the state government upon vote by fishermen eligible to vote on the implementation of this chapter. The Secretary of Food and Agriculture (secretary) is required to establish the list, and may request the assistance of the Director of the Department of Fish and Wildlife.
- Precludes this chapter from becoming operative until the secretary finds, in a referendum vote, that at least 40% of the total number of fishermen from the eligible list participated in the vote to establish, and that:
- At least 65% voted in favor of establishing the commission.
- The fishermen voting landed 65% or more of the total quantity of spiny lobster in the previous season.
- Provides a sunset to the language such that if, after two attempts at a vote, both the first and second votes to establish the commission fail, this law would be repealed within six months. If the first vote fails, and a second vote does not take place, the law would be repealed within 24 months of the certification of the first vote.
- States that the commission shall be composed of six fishermen members and one public member. The secretary and other persons as determined by the commissioners shall serve as ex officio members.
- Provides that one fisherman member shall be elected from each of the following: County of Los Angeles, County of San Diego, County of Orange, County of Ventura, County of Santa Barbara.
- Delineates the powers of the secretary to issue "cease and desist" orders to the commission when the secretary believes the commission actions are not in the interest of the public or in violation of the law governing the commission.
- Requires the secretary, when he or she is required to concur in a decision of the commission, to respond within 15 working days from the notification of the decision.
- Provides for the filling of vacancies on the commission and establishes qualifications from members of the commissions.
- Requires that the public member of the commission be someone who has no financial interest in the spiny lobster fishery.
- Establishes fiscal and corporate rules for the commission, including procedural and notice requirements for commission meetings.
- Allows the commission to approve payment of a stipend to commission members of not more than $145 for each day the commission member is on official business, not to exceed $725 in a single month.
- Establishes a landing fee of $0.25 for each pound of spiny lobster landed with increases up to $0.50 per pound, unless approved by both a majority of the commission and eligible fishermen as were approved to establish the commission.
- Establishes rules and procedures for the commission governance, continuation, suspension or termination of the commission, including periodic review by the secretary.
- Addresses constitutional provisions requiring that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
The Senate amendments amend the requirement that "[u]pon entry of any final judgement on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied." According to the Senate Judiciary Committee Analysis, "Although this provision is in the statutes governing other commissions, it appears overly harsh to enjoin a fisherman in the state from engaging in the fisherman's livelihood immediately upon judgment. It is also counterproductive to the extent it restrains a defendant from earning income that may be necessary to satisfy the relevant judgment." Amendments taken in the Senate, instead, allow such an injunction to be stayed for a period of 30 days.
EXISTING LAW:
- In the Food and Agriculture Code, provides for the creation of various commissions for marking of commodities.
- Requires, within the Fish and Game Code, that participants in the lobster fishery obtain permits from the Department of Fish and Wildlife.
- Authorizes the Department of Fish and Wildlife to limit the number of permits to protect the resources and establish landing fees.
FISCAL EFFECT: According to Assembly Appropriations Committee, no additional state costs. All costs are covered by the assessment fee or the landing fee.
COMMENTS: According to those supporting the bill, the California spiny lobster is an important natural resource managed by the state for over 100 years. The species supports both a commercial and recreational fishery, and is known as a keystone predator within the southern California nearshore ecosystem. The commercial fishery in California extends from Point Conception (Santa Barbara County) south to the United States and Mexico border, and is estimated by the industry to contribute $33 million to $40 million in consumer spending within the California economy. Currently, the majority of commercial spiny lobster is exported due to high price per pound that can be obtained in China (up to $30/lb.). This has contributed to the pressure to effectively manage the resource.
Proponents argue that production of spiny lobster for domestic consumption and export is one of the leading segments of the state's commercial fishing industry. The fishery credits industry support for appropriate management and regulations in ensuring sustainability of harvest. The establishment of a commission is intended to improve harvesting and processing practices, provide an integrated approach to fishery management, and increase resource assessment, monitoring and protection tools.
The industry believes the unique method of creation of this commission will overcome issues of opposition. Specifically, the vote by the industry, upon chaptering of the legislation, to determine whether or not the commission should be established, is key to mitigating opposition within the industry. Failure to meet the initial voting requirements would mean that the commission would not be established.
Previous efforts, in 2009 and 2010, to establish additional permit and landing fees in order to create advisory committees and support additional research and management efforts within the industry failed to garner support of the Governor (see below). An argument could be made that this model of resources management by the industry preserves all species protections by the Department of Fish and Wildlife (permitting, spiny lobster fishery management, and general near-shore fisheries management), while allowing the industry to self-fund other resource, marketing, and management options.
Previous and Related Legislation.
SB 1540 (Alpert), Chapter 973, Statutes of 2002, established the Sea Urchin Commission within the state with similar structure and voting requirements.
AB 571 (Saldaña) of 2009, and AB 408 (Saldaña) of 2010, were substantially similar, and would have created a Lobster Management Enhancement Supplement and established a five member advisory committee. The Governor vetoed both bills due to the increased permit fees they established.
Analysis Prepared by: Catherine Freeman / W., P., & W. / (916) 319-2096 FN: 0001421
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 944 |
THIRD READING
Bill No: AB 944
Amended: 7/18/17 in Senate
SENATE AGRICULTURE COMMITTEE: 5-0, 6/20/17
AYES: Galgiani, Wilk, Berryhill, Dodd, Pan
SENATE JUDICIARY COMMITTEE: 5-2, 7/11/17
AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/21/17
AYES: Lara, Beall, Bradford, Hill, Nielsen, Wiener
NO VOTE RECORDED: Bates
ASSEMBLY FLOOR: 71-4, 5/30/17 - See last page for vote
SUBJECT: California Spiny Lobster Commission
SOURCE: Commercial Fishermen of Santa Barbara
DIGEST:
This bill creates the California Spiny Lobster Commission to maintain the spiny lobster commercial fishing industry through research, promotion, and education. This bill prescribes membership, powers and duties, implementing and voting procedures, assessments and recordkeeping, and procedures for continuation or termination of the commission, and does become operative until after a favorable producer referendum vote occurs.
Existing law:
- Provides in the Food and Agriculture Code for the creation of various commissions for marking of commodities.
- Requires, within the Fish and Game Code, that participants in the lobster fishery obtain permits from the Department of Fish and Wildlife.
- Authorizes the Department of Fish and Wildlife to limit the number of permits to protect the resources and establish landing fees.
This bill:
- Makes findings and declarations regarding the production, management, harvesting, processing, and marketing of spiny lobsters in California.
- Defines terms such as fisherman, handler, and spiny lobster fishery.
- Establishes the California Spiny Lobster Commission, consisting of six fishermen and one public member. The secretary of the Department of Food and Agriculture (CDFA) and other appropriate persons shall serve as ex officio members.
- Requires fishermen members to represent one of six counties and be elected by the fishermen in those counties: San Diego, Orange, Ventura, Santa Barbara, and Los Angeles. One at-large member shall be a qualified fisherman from any county elected by all fishermen statewide. Alternate members may be elected in the same manner as members.
- Requires nomination for election to the commission by a petition signed by at least five fishermen. The public member shall be appointed by the secretary from nominees recommended by the commission and shall have all the powers and rights of any other member; however, the public member cannot have a financial interest in the spiny lobster fishery.
- Authorizes the secretary to require the commission to correct or cease any activity or function that is determined not to be in the best interest of the public or which is illegal. If the commission fails to comply, the secretary may send a written notice and suspend commission activities until the action is corrected or ceased. Any actions taken by the commission during this time are without legal force or effect.
- Provides for travel reimbursement but no salary for commission members. Allows a maximum per diem of $145 per day and $725 per month. Requires the commission to reimburse the secretary for all expenditures incurred in carrying out his or her duties and responsibilities.
- Provides procedures for filling vacancies on the commission.
- Limits the term of office for all members and alternates, except for ex officio members, to two consecutive three-year terms. Following the final term, the member may serve until a qualified successor is elected. At least 12 months must pass before a termed-out member may be eligible for reelection.
- Authorizes the commission to sue and be sued and to enter into contracts.
- Requires the secretary or the secretary’s representative to be notified and allowed to attend each commission meeting, except for executive session meetings called for the purpose of actual litigation against the department.
- Requires all funds to be deposited in a bank, as specified.
- Relieves the state of any liability for actions of the commission or its contracts. No member, employee or agent of the commission shall be personally liable for contracts or responsible individually for any error except for their own acts of dishonesty or crime.
- Authorizes the commission to:
- Adopt and amend bylaws, rules, regulations, and orders.
- Administer and perform all acts and exercise all powers deemed necessary to promote and maintain the spiny lobster commercial fishing industry.
- Appoint officers, employ an executive officer or other personnel, and determine employee compensation.
- Appoint an advisory committee.
- Establish offices, incur expenses, invest funds, enter into contracts and agreements, create liabilities, and borrow funds.
- Present facts and negotiate with state, federal and foreign agencies.
- Carry out spiny lobster fishery industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster.
- Carry out public information programs and adopt a logo or trademark or other promotional tools.
- Conduct market surveys and analyses.
- Conduct scientific research.
- Accept private or public funds.
- Collect information on spiny lobster fishery landing statistics.
- Requires the commission to:
- Keep accurate books and accounts, which are subject to an annual audit that shall be submitted to the legislature and the department.
- Establish an assessment rate.
- Establish an annual budget and statement of planned activities, which shall be concurred in by the secretary.
- Investigate and prosecute civil violations of this chapter and file complaints with law enforcement agencies.
- Establishes implementation and voting procedures to be administered by the secretary and provides that the initial referendum vote be funded by proponents of this chapter.
- Requires 40 percent of the total number of fishermen to cast a referendum vote to begin operation of the commission as long as either of the following have also occurred:
- Of those votes, 65 percent must vote in favor of the commission. That same 65 percent must also represent fishermen who, when total production volume is combined, landed a majority of the total quantity of spiny lobster in the previous fishing season compared to all those participating in the referendum vote.
- Of those votes, a majority of fishermen must vote in favor of the commission and those fishermen must represent 65 percent or more of the total quantity of spiny lobster landed in the previous fishing season compared to all those participating in the referendum vote.
- Authorizes the secretary to declare the commission inoperative upon a failed referendum vote. The secretary must wait at least one year before conducting another vote.
- Establishes an assessment rate to be paid by fishermen of not more than $0.10 per pound of spiny lobster. An increase in this rate, not to exceed $0.50, must be approved by a referendum vote, and a penalty shall be paid on any past due assessment.
- Requires records to be kept of all transactions involving the purchase or sale of spiny lobster. Records shall be kept for three years and available for inspection.
- Provides that all proprietary information, including names and addresses of fishermen, is confidential.
- Creates a new crime (misdemeanor) for any for person who furnishes false documents to avoid paying spiny lobster assessment fees and for persons who destroy, alter, or refuse or fail to furnish reports or records which are required to be kept.
- Authorizes the board to establish procedures for individuals aggrieved by its actions, including appeals and judicial review.
- Authorizes the commission to commence civil actions and utilize all remedies provided in law for collection of assessments and civil penalties.
- Provides for continuation, suspension, or termination of this chapter through commission member referendum vote.
- Requires the secretary to hold a public hearing once every five years to determine whether the commission should be continued.
- Authorizes the commission, upon two-thirds vote, to recommend to the secretary that the commission be suspended for failure to achieve its declared purposes. The secretary shall then hold a referendum vote with the same specifications and requirements as the implementation referendum vote.
Background
California marketing programs were created to provide a means for an agricultural industry, working within a defined organizational structure and under government oversight, to collectively address production, marketing, research, and educational issues of a particular agricultural commodity. There are three types of marketing programs: marketing orders, councils, and commissions. Although similar, each program functions in a slightly different way, such as the degree of autonomy and program authority. However, each marketing program is created at the request of the affected industry and requires an industry referendum vote before the program can operate.
Specific to commissions, there are currently 19 active commissions in California, all of which are governed by boards of directors and overseen by the CDFA. These commissions were created to enhance their industries by investing in promotion, advertising, education, marketing research, scientific research, and the creation and regulation of quality standards.
Commissions are industry-funded programs funded through grower and/or handler assessment fees. The industry pays for all costs of the commission, including all costs for governmental oversight. The fee rate may be prescribed in statute with the potential to be increased by a referendum vote of the commission.
Spiny Lobster. The California spiny lobster is an important and popular predator located off the shores of southern California. According to the California Department of Fish and Wildlife (CDFW), California spiny lobster fisheries range from 0-3 nautical miles from shore from Point Conception in Santa Barbara County to the US-Mexico border. In 2015, the total landings for spiny lobster reached 768,000 pounds, which equates to over $15 million in value. CDFW has managed the spiny lobster for over a century and enforces regulations set by the California Fish and Game Commission. CDFW manages the spiny lobster population and ecosystem by requiring commercial fishing permits, recreational harvest report cards, and by limiting size, take, and fishing times. CDFW will also enforce area closures if needed.
Comments
According to the author,
The production of Spiny Lobster for domestic consumption and export is one of the leading segments of the state's commercial fishing industry. To maintain this significant contribution to the economy, the unique factors affecting the spiny lobster fishery need to be identified and integrated with appropriate management measures to ensure sustainability.
The successes the spiny lobster fisheries have enjoyed is due to a commitment by the industry to support appropriate management regulations. Guiding the harvesting of spiny lobster and funding research for resource assessment and enhancement methodology has led to significant improvements in understanding the biology of the spiny lobster resource.
The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
FISCAL EFFECT: Appropriation: Yes Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee, this bill does not result in additional state costs. All costs to the California Department of Food and Agriculture (CDFA) would be covered by assessments.
Commercial Fishermen of Santa Barbara (source)
The Nature Conservancy
City of Santa Barbara
California Sea Urchin Commission
Santa Barbara Chamber of Commerce
OPPOSITION: (Verified 8/22/17)
None received
ASSEMBLY FLOOR: 71-4, 5/30/17
AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chávez, Chiu, Chu, Cooley, Cooper, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NOES: Travis Allen, Brough, Dababneh, Harper
NO VOTE RECORDED: Chau, Chen, Choi, Cunningham, Eggman
Prepared by: Jonas Austin / SFA / (916) 651-1520
8/22/17 10:38:10
**** END ****
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
AB 944 (Limón) - California Spiny Lobster Commission
Version: July 18, 2017 | Policy Vote: AGRI. 5 - 0, JUD. 5 - 2 |
Urgency: No | Mandate: Yes |
Hearing Date: August 21, 2017 | Consultant: Robert Ingenito |
This bill does not meet the criteria for referral to the Suspense File.
Bill Summary:
AB 944 would create the California Spiny Lobster Commission.
Fiscal Impact:
This bill would not result in additional state costs. All costs to the California Department of Food and Agriculture (CDFA) would be covered by assessments (See Staff Comments).
Background:
Currently, there are 19 active agricultural commissions in the State, all of which are governed by boards of directors and overseen by CDFA. These commissions were created to enhance their industries by investing in promotion, advertising, education, marketing research, scientific research, and the creation and regulation of quality standards. Commissions are industry-funded programs funded through grower and/or handler assessment fees. The industry pays for all costs of the commission, including all costs for governmental oversight. The fee rate may be prescribed in statute with the potential to be increased by a referendum vote of the commission.
California spiny lobsters have been fished in Southern California for nearly 150 years. The production of spiny lobster for domestic consumption and export is one of the leading segments of the state’s commercial fishing industry. Currently, the majority of commercial spiny lobster is exported due to high price per pound that can be obtained in China (up to $30/lb.). This has contributed to the pressure to effectively manage the resource.
The California Department of Fish and Wildlife has managed the fishery for over a century, implementing and enforcing regulations set by the California Fish and Game Commission. This management includes issuing commercial fishing permits, recreational harvest report cards, gear restrictions, size limits, time and area closures, and a recreational possession limit.
In order to manage this fishery more comprehensively, the California Fish and Game Commission adopted the Spiny Lobster Fishery Management Plan (FMP) on April 13, 2016. As part of the FMP creation, a Lobster Advisory Committee (LAC) was formed in order to involve representatives of constituent groups and receive their advice, feedback, and recommendations regarding the issues and actions that needed to be taken. The FMP serves as the groundwork for the management of the spiny lobster fishery.
Proposed Law:
This bill would, among other things, do the following:
- Establish the California Spiny Lobster Commission, as specified.
- Authorize CFDA to correct or cease any activity or function that is determined not to be in the best interest of the public or which is illegal. If the Commission fails to comply, CFDA may send a written notice and suspend commission activities until the action is corrected or ceased. Any actions taken by the Commission during this time are without legal force or effect.
- Provide for travel reimbursement but no salary for Commission members. Allow a maximum per diem of $145 per day and $725 per month. Require the Commission to reimburse CDFA, as specified.
- Relieve the State of any liability for actions of the Commission or its contracts. No member, employee or agent of the Commission shall be personally liable for contracts or responsible individually for any error except for their own acts of dishonesty or crime.
- Require the Commission to: (1) keep accurate books and accounts, which are subject to an annual audit that shall be submitted to the Legislature and CDFA, (2) establish an assessment rate, (3) establish an annual budget and statement of planned activities, which shall be concurred in by CDFA, and (4) investigate and prosecute civil violations of this chapter and file complaints with law enforcement agencies.
- Require 40 percent of the total number of fishermen to cast a referendum vote to begin operation of the commission as long as specified criteria are met.
- Establish an assessment rate to be paid by fishermen of not more than $0.10 per pound of spiny lobster. An increase in this rate, not to exceed $0.50, must be approved by a referendum vote, and a penalty shall be paid on any past due assessment.
- Require records to be kept of all transactions involving the purchase or sale of spiny lobster. Record shall be kept for three years and available for inspection.
- Create a new crime (misdemeanor) for any for person who furnishes false documents to avoid paying spiny lobster assessment fees and for persons who destroy, alter, or refuse or fail to furnish reports or records which are required to be kept.
- Require CDFA to hold a public hearing once every five years to determine whether the Commission should be continued.
- Authorize the Commission, upon two-thirds vote, to recommend to CDFA that it be suspended for failure to achieve its declared purposes. CDFA shall then then hold a referendum vote with the same specifications and requirements as the implementation referendum vote.
Related Legislation:
- AB 408 (Saldaña, 2010) would have (1) created the Lobster Management Enhancement Supplement and Advisory Committee, and (2) required a supplemental lobster permit fee of $300 to exclusively fund projects and programs to improve lobster sustainability and management. The bill was vetoed by the Governor.
- AB 571 (Saldaña, 2009) was similar to AB 408 of 2010. This bill was also vetoed by the Governor.
Staff Comments:
The establishment of this Commission is intended to improve harvesting and processing practices, provide an integrated approach to fishery management, and increase resource assessment, monitoring and protection tools.
CDFA indicates that there would be no fiscal impact resulting from the bill, assuming assessment revenues are sufficient to reimburse its administrative costs. CDFA estimates that assessments will generate $200,000 during the Commission’s first year of operation. CDFA estimates its cost to implement the law would be about $5,000; the department’s annual costs incurred to oversee the Commission are estimated at $16,000.
Any local government costs resulting from the mandate in this measure are not state-reimbursable because the mandate only involves the definition of a crime or the penalty for conviction of a crime.
-- END --
Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
Bill No: AB 944 (Author:Limón)
Version: June 13, 2017
Hearing Date: July 11, 2017
Fiscal: Yes
Urgency: No
Consultant: CK
SUBJECT
California Spiny Lobster Commission
DESCRIPTION
This bill would allow for the establishment of the California Spiny Lobster Commission.
BACKGROUND
California law provides for a wide variety of commissions and councils that represent various agricultural and seafood industries pursuant to the Food and Agricultural Code. These entities are deemed duly constituted authorities of this state and are mandated to enhance and preserve the economic interests of the State of California and intended to provide benefits to the entire industry represented as well as all of the people of this state.
California spiny lobster have been fished in southern California for nearly 150 years, with the commercial fishery originating in Santa Barbara County. The catch is usually evenly divided between three regions: Santa Barbara/Ventura counties, Los Angeles/Orange counties, and San Diego County. The reported spiny lobster landings for the 2015-2016 commercial fishing season are 793,829 pounds with another 265,355 pounds caught recreationally. The California Department of Fish and Wildlife has managed the fishery for over a century, implementing and enforcing regulations set by the California Fish and Game Commission. This management includes issuing commercial fishing permits, recreational harvest report cards, gear restrictions, size limits, time and area closures, and a recreational possession limit.
In order to manage this fishery more comprehensively, the California Fish and Game Commission adopted the Spiny Lobster Fishery Management Plan (FMP) on April 13, 2016. As part of the FMP creation, a Lobster Advisory Committee (LAC) was formed in order to involve representatives of constituent groups and receive their advice, feedback, and recommendations regarding the issues and actions that needed to be taken. The FMP serves as the groundwork for the management of the spiny lobster fishery.
This bill would represent the next step in the evolution of the spiny lobster industry in California. It would create the Spiny Lobster Commission, tasked with promoting the commercial spiny lobster fishing industry and supporting associated research. Supporters of the bill believe the Commission is necessary as there is not currently a state-level entity focused on marketing and research to protect and enhance the future of the fishery. This bill was passed in the Senate Agriculture Committee 5-0.
CHANGES TO EXISTING LAW
Existing law states the agricultural and seafood industries are vitally important elements of the state’s economy and are supported by state established commissions and councils that are mandated to enhance and preserve the economic interests of the State of California and are intended to do all of the following:
- implement public policy through their expressive conduct. The programs conducted by these commissions and councils are among the broad range of state-mandated regulatory programs that are funded by the public through user fees assessed in accordance with each person’s relationship to a particular program;
- reflect a continuing commitment by the State of California to its agricultural and seafood industries that are integral to its economy. These industries are a source of substantial employment for the state’s citizens, produce needed tax revenues for the support of state and local government, encourage responsible stewardship of valuable land and marine resources, and produce substantial necessary food and fiber for the state, nation, and world;
- represent a policy of support for persons engaged in the agricultural and seafood industries, which are critically important elements of the state’s economy. These commissions and councils are particularly important for the continued success of California’s unique agricultural and seafood industries which tend to be decentralized with many small entities operating in diverse locations;
- provide benefit to the entire industry and all of the people of this state. The commissions and councils are not enacted, and are not intended to produce measurable benefit, on an individual basis, and their successes should be evaluated by analyzing the extent to which they have improved the overall conditions for the particular commodity subject to the commission’s or council’s jurisdiction with resulting benefit to the overall economy of the state; and
- enhance the image of California agricultural and seafood products to increase the overall demand for these commodities. In this fashion, the Legislature intends that the commissions and councils operate primarily for the purpose of creating a more receptive environment for the commodity and for the individual efforts of those persons in the industry, and thereby compliment individual, targeted, and specific activities. (Food & Agr. Code Sec. 63901.)
Existing law provides that commission and council activities are essential to the goals and interests of the State of California that include, but are not limited to, all of the following:
- research, including, but not limited to, production research, food safety research, marketing research and trends analysis, and research relating to crop protection and production materials;
- elimination of tariff and nontariff trade barriers;
- consumer education relating to the health and other benefits of using and consuming agricultural and seafood products;
- consumer education relating to environmental protection and conservation;
- demand-side regulation that stabilizes the flow of product to market through promotion;
- analysis of the impact of federal, state, and foreign regulation;
- cooperative crisis resolution that impacts public health and safety and the continued stability of the industry;
- participation with state and federal agencies in negotiating with other governments relating to market access issues such as phytosanitary issues, shipping protocols, crop protection residues, packaging, labeling, and other issues raised by countries imposing trade barriers on the import of agricultural and seafood products into their markets; and
- industry self-regulation to establish and maintain grade, size, and maturity standards and to stabilize the flow of product to market. (Food & Agr. Code Sec. 63901.3.)
This bill would provide for the establishment of the California Spiny Lobster Commission (the Commission), made up of six fishermen members and one public member. Five of the fishermen members would be elected by the fishermen in the following counties: San Diego County, Orange County, Ventura County, Santa Barbara County, and Los Angeles County. The final fisherman member would be from any county and would be elected by all fishermen statewide. The public member would be appointed by the secretary of the California Department of Food and Agriculture (CDFA) from nominees recommended by the Commission.
This bill would provide that the establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
This bill would provide that the Commission, along with the provisions of this bill, would only take effect after an implementation referendum vote in which at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this bill participated and that either of the following occurred:
- 65 percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum; or
- a majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
This bill would require the secretary to establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
This bill provides that if the original referendum vote fails, another vote can be had after one year has passed. However, if the second vote again disfavors implementation or fails to take place within two years of the original vote, the provisions of this bill would be repealed.
This bill would provide that no action taken by the commission, or by any individual in accordance with this bill is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
This bill would authorize the secretary to require the Commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this bill. If the Commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, would be able to suspend all or a portion of the activities or functions of the Commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the Commission. Actions of the Commission in violation of the written notice would be without legal force or effect. The secretary, to the extent feasible, must issue the written notice prior to the Commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice. Upon service of the written notice, the secretary would be required to notify the Commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
This bill would provide that when the secretary is required to concur in a decision of the Commission, the secretary shall give a response to the Commission within 15 working days from the notification of the decision. The secretary’s response may be a requirement that additional information be provided. The commission would be required to reimburse the secretary for all expenditures incurred by the secretary in carrying out the secretary’s duties and responsibilities pursuant to this bill. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretary’s legal costs with regard to that action.
This bill would provide the various procedures for conducting the business of the Commission, including filling vacancies on its board, the hiring of staff, and the management of its finances.
This bill would authorize the commission to sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, would be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts. The commission would be authorized to investigate and prosecute civil violations of this bill and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
This bill would provide that the state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission would be limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, would not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, would not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for their own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, would not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability would be several and not joint, and a member or alternate of the commission, or any employee or agent thereof, would not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
This bill would authorize the commission to adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this bill, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission. The Commission would be authorized to administer and enforce this bill and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
This bill would authorize the Commission to present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster fishery industry.
This bill would authorize the commission to accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
This bill would require the commission and the secretary to keep confidential and not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this bill in their possession. However, the commission would be required to establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
This bill would provide for a mandatory assessment of 10 cents for each pound of spiny lobster landed in the marketing season of the Commission’s operation. Thereafter, the assessment would be able to be modified annually but may not exceed 50 cents per pound unless approved by the fishermen in a referendum conducted pursuant to the procedures specified in the bill. These assessments would be considered the personal debt of every person assessed.
This bill would provide that all proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding. Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, would be permitted to be disclosed by the commission.
This bill would provide that when the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
This bill would provide that any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission, shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 1.5 percent interest per month on the unpaid balance. In addition to any other penalty imposed, the commission would be authorized to require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
This bill would make it a misdemeanor to engage in certain specified misconduct, including false reporting, failing to report, or failing to provide information concerning the name and address of the persons to whom spiny lobster were sold.
This bill would require the commission to establish procedures for the purpose of providing individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission could be made to the secretary. The determination of the secretary would be subject to judicial review upon a petition filed with the appropriate superior court.
This bill would authorize the commission to commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this bill and any regulations adopted pursuant to this bill. A court would be required to issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond would not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. This bill would provide that a writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure would not be required. Injunctive relief would be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure would not be required.
This bill would provide that upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. Upon a favorable judgment for the commission, it would be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions could be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission would only be allowed to be sued in the county of its principal office.
This bill would provide a process for a reapproval referendum if the secretary finds a substantial question exists regarding the continued operation of the Commission.
COMMENT
1. Stated need for the bill
According to the author:
The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
2. Creating a supportive and promotional body for the spiny lobster industry
Currently, no commission or council exists in California that focuses on the promotion of the spiny lobster industry or on research dedicated to the spiny lobster industry. This bill would fill that void by creating the Spiny Lobster Commission. This bill has a number of provisions that ensure the Commission would speak to the needs of the actual fishermen in the industry. First, unlike other commissions in California, this bill would provide for the prescription of measures to “maximize the likelihood that all eligible persons receive referendum voting materials.” This ensures the fishermen’s voices are heard.
This bill would also ensure that the fishermen would have a voice in the selection of the members of the Commission that would represent their interests. Five of the members would each be selected from the major counties in which spiny lobster are caught: San Diego County, Orange County, Ventura County, Santa Barbara County, and Los Angeles County. Another fisherman member would be from any county and would be elected by all fishermen statewide. The final, public member would be the only one appointed by the secretary of the California Department of Food and Agriculture (CDFA), but would be chosen from nominees recommended by the Commission.
Supporters of the bill believe the Commission is necessary as there is not currently a state-level entity focused on marketing and research to protect and enhance the future of the fishery. Pollution and climate change have affected the industry in ways that need proactive and coordinated responses. Investments in developing new strategies for dealing with certain biotoxins and reducing whale entanglement serve the entire industry and the public at large.
3. Provisions warranting some scrutiny
There are some provisions that merit additional attention. First, this bill would provide that no action taken by the Commission, or by any individual in accordance with this bill or with the rules and regulations adopted under this bill, shall be deemed a violation of the Cartwright Act, the Unfair Practices Act, or any statutory or common law against monopolies or combinations in restraint of trade. Although this has become standard boilerplate in the enabling statutes for commissions in this state, the justification for including such language for every commission is not clear. Here, supporters of the bill have responded by pointing out that the state’s continued production of a product is best served by enabling the producers to problem-solve collectively, especially in regards to staying competitive with producers in other states and countries.
Examples have been provided where the need for these exemptions might be necessary. For instance, supporters contend there might be a need “to discuss marketing or boycott or tying up boats to protest some unfair treatment of buyers or some country that may be trying to take advantage” or to “organize fishermen in some show of strength” where these exemptions would be necessary. The Committee may wish to consider whether these justifications are sufficient to support these broad legal exemptions for this particular commission.
This bill would also permit the Commission to accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery. While mandating certain fees from fishermen to fund research and marketing to benefit the entire industry makes sense, the injection of private money may skew the calculus of the Commission’s priorities in unforeseen ways. The Committee may wish to consider whether the provision allowing for private donations to this government entity are advisable in this context.
This bill would also provide that information in the possession of the Commission regarding the names and addresses of fisherman, or the volume and value of landings made or purchased by them would be confidential and could not be disclosed except when required by a court order after a hearing in a judicial proceeding. This would clearly be a limitation on the California Public Records Act. The Committee may wish to consider whether the interests served in nondisclosure of this information outweighs the public’s right to access the records of a public entity. It should be noted that the bill would allow information about the value and volume of landings to be disclosed if it was required for reports to governmental agencies or financial reports to the Commission, circumscribing what is kept from public access.
This bill also provides that “[u]pon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied.” Although this provision is in the statutes governing other commissions, it appears overly harsh to enjoin a fisherman in the state from engaging in the fisherman’s livelihood immediately upon judgment. It is also counterproductive to the extent it restrains a defendant from earning income that may be necessary to satisfy the relevant judgment. In response to these concerns, the author has agreed to the following amendment to make this provision more judicious:
Committee Amendment
On page 18, line 17, after “satisfied.” insert “Such injunction shall be stayed for a period of thirty days.”
Support: California Sea Urchin Commission; Chamber of the Santa Barbara Region; City of Santa Barbara; two individuals
Opposition: None Known
HISTORY
Source: Commercial Fishermen of Santa Barbara
Related Pending Legislation: AB 243 (Cooper, 2017) would create the California Beef Commission. This bill is currently in the Senate Judiciary Committee.
Prior Legislation:
AB 408 (Saldaña, 2010) would have created a new supplemental fee to be paid by commercial spiny lobster fisherman with proceeds going to the Department of Fish and Game on projects to improve the sustainability of the spiny lobster fishery. This bill would have also created an advisory committee to provide input to the Department on expenditure of the fee revenues. This bill was vetoed by the Governor.
AB 571 (Saldaña, 2009) would have created a new supplemental fee to be paid by commercial spiny lobster fisherman with proceeds going to the Department of Fish and Game on projects to improve the sustainability of the spiny lobster fishery. This bill would have also created an advisory committee to provide input to the Department on expenditure of the fee revenues. This bill was vetoed by the Governor.
Prior Vote:
Senate Agriculture Committee (Ayes 5, Noes 0)
Assembly Floor (Ayes 71, Noes 4)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Water, Parks and Wildlife Committee (Ayes 15, Noes 0)
**************
SENATE COMMITTEE ON AGRICULTURE
Senator Cathleen Galgiani, Chair
2017 - 2018 Regular
Bill No: AB 944 Hearing Date: 6/20/17
Author: | Limón | ||
Version: | 6/13/17 Amended | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Anne Megaro | ||
Subject: California Spiny Lobster Commission
SUMMARY
:
This bill would create the California Spiny Lobster Commission to maintain the spiny lobster commercial fishing industry through research, promotion, and education. This bill would prescribe membership, powers and duties, implementing and voting procedures, assessments and recordkeeping, and procedures for continuation or termination of the commission. This bill would not become operative until after a favorable producer referendum vote occurs.
BACKGROUND AND EXISTING LAW
:
California marketing programs were created to provide a means for an agricultural industry, working within a defined organizational structure and under government oversight, to collectively address production, marketing, research, and educational issues of a particular agricultural commodity. There are three types of marketing programs: marketing orders, councils, and commissions. Although similar, each program functions in a slightly different way, such as the degree of autonomy and program authority. However, each marketing program is created at the request of the affected industry and requires an industry referendum vote before the program can operate.
Specific to commissions, there are currently 19 active commissions in California, all of which are governed by boards of directors and overseen by the California Department of Food and Agriculture (CDFA). These commissions were created to enhance their industries by investing in promotion, advertising, education, marketing research, scientific research, and the creation and regulation of quality standards.
Commissions are industry-funded programs funded through grower and/or handler assessment fees. The industry pays for all costs of the commission, including all costs for governmental oversight. The fee rate may be prescribed in statute with the potential to be increased by a referendum vote of the commission.
Spiny Lobster. The California spiny lobster is an important and popular predator located off the shores of southern California. According to the California Department of Fish and Wildlife (CDFW), California spiny lobster fisheries range from 0-3 nautical miles from shore from Point Conception in Santa Barbara County to the US-Mexico border. In 2015, the total landings for spiny lobster reached 768,000 pounds, which equates to over $15 million in value. CDFW has managed the spiny lobster for over a century and enforces regulations set by the California Fish and Game Commission. CDFW manages the spiny lobster population and ecosystem by requiring commercial fishing permits, recreational harvest report cards, and by limiting size, take, and fishing times. CDFW will also enforce area closures if needed.
PROPOSED LAW
:
This bill:
- Makes findings and declarations regarding the production, management, harvesting, processing, and marketing of spiny lobsters in California.
- Defines terms such as fisherman, handler, and spiny lobster fishery.
- Establishes the California Spiny Lobster Commission, consisting of six fishermen and one public member. The secretary and other appropriate persons shall serve as ex officio members.
- Requires fishermen members to represent one of six counties and be elected by the fishermen in those counties: San Diego, Orange, Ventura, Santa Barbara, and Los Angeles. One at-large member shall be a qualified fisherman from any county elected by all fishermen statewide. Alternate members may be elected in the same manner as members.
- Requires nomination for election to the commission by a petition signed by at least five fishermen. The public member shall be appointed by the secretary from nominees recommended by the commission and shall have all the powers and rights of any other member; however, the public member cannot have a financial interest in the spiny lobster fishery.
- Authorizes the secretary to require the commission to correct or cease any activity or function that is determined not to be in the best interest of the public or which is illegal. If the commission fails to comply, the secretary may send a written notice and suspend commission activities until the action is corrected or ceased. Any actions taken by the commission during this time are without legal force or effect.
- Provides for travel reimbursement but no salary for commission members. Allows a maximum per diem of $145 per day and $725 per month. Requires the commission to reimburse the secretary for all expenditures incurred in carrying out his or her duties and responsibilities.
- Provides procedures for filling vacancies on the commission.
- Limits the term of office for all members and alternates, except for ex officio members, to two consecutive three-year terms. Following the final term, the member may serve until a qualified successor is elected. At least 12 months must pass before a termed-out member may be eligible for reelection.
- Authorizes the commission to sue and be sued and to enter into contracts.
- Requires the secretary or the secretary’s representative to be notified and allowed to attend each commission meeting, except for executive session meetings called for the purpose of actual litigation against the department.
- Requires all funds to be deposited in a bank, as specified.
- Relieves the state of any liability for actions of the commission or its contracts. No member, employee or agent of the commission shall be personally liable for contracts or responsible individually for any error except for their own acts of dishonesty or crime.
- Authorizes the board to:
- Adopt and amend bylaws, rules, regulations, and orders.
- Administer and perform all acts and exercise all powers deemed necessary to promote and maintain the spiny lobster commercial fishing industry.
- Appoint officers, employ an executive officer or other personnel, and determine employee compensation.
- Appoint an advisory committee.
- Establish offices, incur expenses, invest funds, enter into contracts and agreements, create liabilities, and borrow funds.
- Present facts and negotiate with state, federal and foreign agencies.
- Carry out spiny lobster fishery industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster.
- Carry out public information programs and adopt a logo or trademark or other promotional tools.
- Conduct market surveys and analyses.
- Conduct scientific research.
- Accept private or public funds.
- Collect information on spiny lobster fishery landing statistics.
- Requires the commission to:
- Keep accurate books and accounts, which are subject to an annual audit that shall be submitted to the legislature and the department.
- Establish an assessment rate.
- Establish an annual budget and statement of planned activities, which shall be concurred in by the secretary.
- Investigate and prosecute civil violations of this chapter and file complaints with law enforcement agencies.
- Establishes implementation and voting procedures to be administered by the secretary and provides that the initial referendum vote be funded by proponents of this chapter.
- Requires 40 percent of the total number of fishermen to cast a referendum vote to begin operation of the commission as long as either of the following have also occurred:
- Of those votes, 65 percent must vote in favor of the commission. That same 65 percent must also represent fishermen who, when total production volume is combined, landed a majority of the total quantity of spiny lobster in the previous fishing season compared to all those participating in the referendum vote.
- Of those votes, a majority of fishermen must vote in favor of the commission and those fishermen must represent 65 percent or more of the total quantity of spiny lobster landed in the previous fishing season compared to all those participating in the referendum vote.
- Authorizes the secretary to declare the commission inoperative upon a failed referendum vote. The secretary must wait at least one year before conducting another vote.
- Establishes an assessment rate to be paid by fishermen of not more than $0.10 per pound of spiny lobster. An increase in this rate, not to exceed $0.50, must be approved by a referendum vote, and a penalty shall be paid on any past due assessment.
- Requires records to be kept of all transactions involving the purchase or sale of spiny lobster. Records shall be kept for three years and available for inspection.
- Provides that all proprietary information, including names and addresses of fishermen, is confidential.
- Creates a new crime (misdemeanor) for any for person who furnishes false documents to avoid paying spiny lobster assessment fees and for persons who destroy, alter, or refuse or fail to furnish reports or records which are required to be kept.
- Authorizes the board to establish procedures for individuals aggrieved by its actions, including appeals and judicial review.
- Authorizes the commission to commence civil actions and utilize all remedies provided in law for collection of assessments and civil penalties.
- Provides for continuation, suspension, or termination of this chapter through commission member referendum vote.
- Requires the secretary to hold a public hearing once every five years to determine whether the commission should be continued.
- Authorizes the commission, upon two-thirds vote, to recommend to the secretary that the commission be suspended for failure to achieve its declared purposes. The secretary shall then hold a referendum vote with the same specifications and requirements as the implementation referendum vote.
ARGUMENTS IN SUPPORT:
According to the author, “The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.”
COMMENTS
:
California Spiny Lobster Fishery Management Plan. CDFW conducted a comprehensive review of the California spiny lobster in 2012 with the goal of developing a fishery management plan that would reflect environmental and market changes to ensure a sustainable fishery and ecosystem. Over the next few years, several public stakeholder meetings were held, a lobster advisory committee was formed, and a draft plan was released. In 2016, the final California Spiny Lobster Fishery Management Plan was adopted by the California Fish and Game Commission. The plan includes a “harvest control rule,” which monitors the status of the fishery and adjusts harvest regulations accordingly.
Commissions. Several existing commissions have been successful in achieving goals of improving product quality, expanding markets, funding research, and establishing product grades and standards. However, there have been, and are currently pending, lawsuits against the department and marketing programs for violations of free speech rights in regards to mandatory assessments used for commodity marketing and advertising. In short, the argument is that these assessment fees could be used by individual farms/ranches to promote their brand and individual product rather than the commodity in general.
Double referral. The Senate Rules Committee has double referred this bill to the Senate Judiciary Committee as the second committee of referral. Therefore, if this measure is approved by this committee, the motion should include an action to re-refer the bill to the Senate Committee on Judiciary.
RELATED LEGISLATION
:
AB 408 (Saldaña) of 2010. Would have created the Lobster Management Enhancement Supplement and Advisory Committee and would have required a supplemental lobster permit fee of $300 to exclusively fund projects and programs to improve lobster sustainability and management. Vetoed.
AB 571 (Saldaña) of 2009. Similar to AB 408 of 2010. Would have created the Lobster Management Enhancement Supplement and Advisory Committee and would have required a supplemental lobster permit fee of $300 to exclusively fund projects and programs to improve lobster sustainability and management. Vetoed.
AB 243 (Cooper) of 2017. Would create the California Beef Commission to augment and support the work of the California Beef Council, expand beef markets and improve competitiveness, conduct research, and negotiate with government agencies. Currently in the Senate Agriculture Committee.
SB 250 (Wolk), Chapter 344, Statutes of 2013. Creates the Olive Oil Commission of California to engage in olive oil quality and nutritional research and to recommend grades and labeling standards. The commission does not become operative until a favorable producer referendum vote.
PRIOR ACTIONS
:
Assembly Floor: | 71 - 4 |
Assembly Appropriations Committee: | 16 - 0 |
Assembly Water, Parks and Wildlife Committee: | 15 - 0 |
SUPPORT
:
Commercial Fishermen of Santa Barbara (sponsor)
California Sea Urchin Commission
Chamber of Commerce of the Santa Barbara Region
City of Santa Barbara
2 individuals
OPPOSITION
:
None received
-- END --
ASSEMBLY THIRD READING
ATR Bill Id:AB 944
Author:(Limón)
As Amended Ver:April 27, 2017
Majority vote
Committee | Votes | Ayes | Noes |
Water | 15-0 | Eduardo Garcia, Gallagher, Bigelow, Choi, Chu, Friedman, Gloria, Bocanegra, Harper, Levine, Mathis, Rubio, Salas, Thurmond, Wood | |
Appropriations | 16-0 | Gonzalez Fletcher, Bigelow, Bloom, Bocanegra, Bonta, Gloria, Chau, Quirk, Fong, Friedman, Gallagher, Eduardo Garcia, Jones-Sawyer, Muratsuchi, Obernolte, Reyes |
|
SUMMARY: Defines the California Spiny Lobster Commission within state government. Specifically, this bill:
- Makes findings regarding participants, both fishermen and handlers, of the spiny lobster fishery.
- Makes findings regarding the need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced in the industry, and the opportunities available to balance spiny lobster production and protection of the marine resources. Declares that the establishment of this commission will meet this need.
- Makes findings that the establishment of the commission is necessary for the efficient creation and management of a research program to develop improved harvest and process practices, and integrated fishery management.
- Declares that the establishment of the commission will enhance the ability of the industry to promote responsible fishery management regulations, including moving the industry toward a sustainable position, increasing consumer value and economic returns.
- Exempts actions of the Commission from the Cartwright Act, the Unfair Practices Act, or any statutory or common law against monopolies or combinations in restraint of trade.
- Defines a "fisherman" or "fishermen" as a person or persons holding various valid commercial harvest licenses, regardless of gender.
- Defines "spiny lobster fishery" as all activity regarding the fishery including harvest, receiving, processing, manufacturing, distribution, and other economic and commercial activity.
- Establishes the commission in the state government upon vote by fishermen eligible to vote on the implementation of this chapter. The Secretary of Food and Agriculture (secretary) is required to establish the list, and may request the assistance of the Director of the Department of Fish and Wildlife.
- Precludes this chapter from becoming operative until the secretary finds, in a referendum vote, that at least 40% of the total number of fishermen from the eligible list participated in the vote to establish, and that:
- At least 65% voted in favor of establishing the commission.
- The fishermen voting landed 65% or more of the total quantity of spiny lobster in the previous season.
- States that the commission shall be composed of six fishermen members and one public member. The secretary and other persons as determined by the commissioners shall serve as ex officio members.
- Provides that one fisherman member shall be elected from each of the following: County of Los Angeles, County of San Diego, County of Orange, County of Ventura, County of Santa Barbara.
- Delineates the powers of the secretary to issue "cease and desist" orders to the commission when the secretary believes the commission actions are not in the interest of the public or in violation of the law governing the commission.
- Requires the secretary, when he or she is required to concur in a decision of the commission, to respond within 15 working days from the notification of the decision.
- Provides for the filling of vacancies on the commission and establishes qualifications from members of the commissions.
- Requires that the public member of the commission be someone who has no financial interest in the spiny lobster fishery.
- Establishes fiscal and corporate rules for the commission, including procedural and notice requirements for commission meetings.
- Allows the commission to approve payment of a stipend to commission members of not more than $145 for each day the commission member is on official business, not to exceed $725 in a single month.
- Establishes a landing fee of $0.25 for each pound of spiny lobster landed with increases up to $0.50 per pound, unless approved by both a majority of the commission and eligible fishermen as were approved to establish the commission.
- Establishes rules and procedures for the commission governance, continuation, suspension or termination of the commission, including periodic review by the secretary.
EXISTING LAW:
- In the Food and Agriculture Code, provides for the creation of various commissions for marking of commodities.
- Requires, within the Fish and Game Code, that participants in the lobster fishery obtain permits from the Department of Fish and Wildlife.
- Authorizes the Department of Fish and Wildlife to limit the number of permits to protect the resources and establish landing fees.
FISCAL EFFECT: According to Assembly Appropriations Committee, no additional state costs. All costs are covered by the assessment fee or the landing fee.
COMMENTS:
According to those supporting the bill, the California spiny lobster is an important natural resource managed by the state for over 100 years. The species supports both a commercial and recreational fishery, and is known as a keystone predator within the southern California nearshore ecosystem. The commercial fishery in California extends from Point Conception (Santa Barbara County) south to the United States and Mexico border, and is estimated by the industry to contribute $33 million to $40 million in consumer spending within the California economy. Currently, the majority of commercial spiny lobster is exported due to high price per pound that can be obtained in China (up to $30/lb.). This has contributed to the pressure to effectively manage the resource.
Proponents argue that production of spiny lobster for domestic consumption and export is one of the leading segments of the state's commercial fishing industry. The fishery credits industry support for appropriate management and regulations in ensuring sustainability of harvest. The establishment of a commission is intended to improve harvesting and processing practices, provide an integrated approach to fishery management, and increase resource assessment, monitoring and protection tools.
The industry believes the unique method of creation of this commission will overcome issues of opposition. Specifically, the vote by the industry, upon chaptering of the legislation, to determine whether or not the commission should be established, is key to mitigating opposition within the industry. Failure to meet the initial voting requirements would mean that the commission would not be established.
Previous efforts, in 2009 and 2010, to establish additional permit and landing fees in order to create advisory committees and support additional research and management efforts within the industry failed to garner support of the Governor (see below). An argument could be made that this model of resources management by the industry preserves all species protections by the Department of Fish and Wildlife (permitting, spiny lobster fishery management, and general near-shore fisheries management), while allowing the industry to self-fund other resource, marketing, and management options.
Previous and Related Legislation.
SB 1540 (Alpert), Chapter 973, Statutes of 2002, established the Sea Urchin Commission within the state with similar structure and voting requirements.
AB 571 (Saldaña), of 2009, and AB 408 (Saldaña), of 2010, were substantially similar, and would have created a Lobster Management Enhancement Supplement and established a five member advisory committee. The Governor vetoed both bills due to the increased permit fees they established.
Assembly Committee Amendments. The author agreed to committee amendments that provide a sunset to the language such that if both the first and second votes to establish the commission fail, this law would be repealed within six months. If the first vote fails, and a second vote does not take place, the law would be repealed within 24 months of the certification of the first vote. Additional amendments address constitutional provisions requiring that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
Analysis Prepared by: Catherine Freeman / W., P., & W. / (916) 319-2096 FN: 0000494
Date of Hearing: April 25, 2017
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Eduardo Garcia, Chair
ABPCA Bill Id:AB 944 (
Author:Limón) – As Amended Ver:April 17, 2017
SUBJECT: California Spiny Lobster Commission
SUMMARY: Defines the California Spiny Lobster Commission within state government. Specifically, this bill:
- Makes findings regarding participants, both fishermen and handlers, of the spiny lobster fishery.
- Makes findings regarding the need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced in the industry, and the opportunities available to balance spiny lobster production and protection of the marine resources. Declares that the establishment of this commission will meet this need.
- Makes findings that the establishment of the commission is necessary for the efficient creation and management of a research program to develop improved harvest and process practices, and integrated fishery management.
- Declares that the establishment of the commission will enhance the ability of the industry to promote responsible fishery management regulations, including moving the industry toward a sustainable position, increasing consumer value and economic returns.
- Exempts actions of the Commission from the Cartwright Act, the Unfair Practices Act, or any statutory or common law against monopolies or combinations in restraint of trade.
- Defines a “fisherman” or “fishermen” as a person or persons holding various valid commercial harvest licenses, regardless of gender.
- Defines “spiny lobster fishery” as all activity regarding the fishery including harvest, receiving, processing, manufacturing, distribution, and other economic and commercial activity.
- Establishes the commission in the state government upon vote by fishermen eligible to vote on the implementation of this chapter. The Secretary of Food and Agriculture (secretary) is required to establish the list, and may request the assistance of the Director of the Department of Fish and Wildlife.
- Precludes this chapter from becoming operative until the secretary finds, in a referendum vote, that at least 40% of the total number of fishermen from the eligible list participated in the vote to establish, and that:
- At least 65% voted in favor of establishing the commission.
- The fishermen voting landed 65% or more of the total quantity of spiny lobster in the previous season.
- States that the commission shall be composed of 6 fishermen members and one public member. The secretary and other persons as determined by the commissioners shall serve as ex officio members.
- Provides that one fisherman member shall be elected from each of the following: County of Los Angeles, County of San Diego, County of Orange, County of Ventura, County of Santa Barbara.
- Delineates the powers of the secretary to issue “cease and desist” orders to the commission when the secretary believes the commission actions are not in the interest of the public or in violation of the law governing the commission.
- Requires the secretary, when he or she is required to concur in a decision of the commission, to respond within 15 working days from the notification of the decision.
- Provides for the filling of vacancies on the commission and establishes qualifications from members of the commissions.
- Requires that the public member of the commission be someone who has no financial interest in the spiny lobster fishery.
- Establishes fiscal and corporate rules for the commission, including procedural and notice requirements for commission meetings.
- Allows the commission to approve payment of a stipend to commission members of not more than $145 for each day the commission member is on official business, not to exceed $725 in a single month.
- Establishes a landing fee of $0.25 for each pound of spiny lobster landed with increases up to $0.50 per pound, unless approved by both a majority of the commission and eligible fishermen as were approved to establish the commission.
- Establishes rules and procedures for the commission governance, continuation, suspension or termination of the commission, including periodic review by the secretary.
EXISTING LAW:
- In the Food and Agriculture Code, provides for the creation of various commission for marking of commodities.
- Requires, within the Fish and Game Code, that participants in the lobster fishery obtain permits from the Department of Fish and Wildlife.
- Authorizes the Department of Fish and Wildlife to limit the number of permits to protect the resources and establish landing fees.
FISCAL EFFECT: Unknown
COMMENTS:
According to those supporting the bill, the California spiny lobster is an important natural resource managed by the state for over 100 years. The species supports both a commercial and recreational fishery, and is known as a keystone predator within the southern California nearshore ecosystem. The commercial fishery in California extends from Point Conception (Santa Barbara County) south to the US and Mexico border, and is estimated by the industry to contribute $33 million to $40 million in consumer spending within the California economy. Currently, the majority of commercial spiny lobster is exported due to high price per pound that can be obtained in China (up to $30/lb.). This has contributed to the pressure to effectively manage the resource.
Proponents argue that production of spiny lobster for domestic consumption and export is one of the leading segments of the state’s commercial fishing industry. The fishery credits industry support for appropriate management and regulations in ensuring sustainability of harvest. The establishment of a commission is intended to improve harvesting and processing practices, provide an integrated approach to fishery management, and increase resource assessment, monitoring and protection tools.
The industry believes the unique method of creation of this commission will overcome issues of opposition. Specifically, the vote by the industry, upon chaptering of the legislation, to determine whether or not the commission should be established, is key to mitigating opposition within the industry. Failure to meet the initial voting requirements would mean that the commission would not be established.
Previous efforts, in 2009 and 2010, to establish additional permit and landing fees in order to create advisory committees and support additional research and management efforts within the industry failed to garner support of the Governor (see below). An argument could be made that this model of resources management by the industry preserves all species protections by the Department of Fish and Wildlife (permitting, spiny lobster fishery management, and general near-shore fisheries management), while allowing the industry to self-fund other resource, marketing, and management options.
Previous and Related Legislation.
SB 1540 (Alpert), Chapter 973, Statutes of 2002, established the Sea Urchin Commission within the state with similar structure and voting requirements.
AB 571 (Saldaña), enrolled in 2009, and AB 408 (Saldaña), enrolled in 2010, were substantially similar, and would have created a Lobster Management Enhancement Supplement and established a five member advisory committee. The Governor vetoed both bills due to the increased permit fees they established.
Committee Amendments. The committee suggests providing a sunset to the language such that if both the first and second votes to establish the commission fail, this law would be repealed within six months. If the first vote fails, and a second vote does not take place, the law would be repealed within 24 months of the certification of the first vote.
REGISTERED SUPPORT / OPPOSITION:
Support
California Sea Urchin Commission
Chamber of Commerce of the Santa Barbara Region, The
City of Santa Barbara
Commercial Fishermen of Santa Barbara
Individuals (2)
Opposition
None on file
Analysis Prepared by: Catherine Freeman / W., P., & W. /
Date of Hearing: May 24, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 944
Author:(Limón) – As Amended Ver:April 27, 2017
Policy Committee: | Water, Parks and Wildlife | Vote: | 15 - 0 |
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Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill establishes the Spiny Lobster Commission, subject to an activating vote of specified eligible fishers, to enhance the ability of the industry to promote responsible fishery management regulations, including moving the industry toward a sustainable position and increasing consumer value and economic returns. Specifically, this bill:
- Exempts actions of the Commission from the Cartwright Act, the Unfair Practices Act, or any statutory or common law against monopolies or combinations in restraint of trade.
- Provides the Commission shall be composed of six fishermen members and one public member. The Secretary of the Department of Food and Agriculture (CDFA) and other persons as determined by the commissioners shall serve as ex officio members.
- Provides that one fisherman member shall be elected from each of the following: County of Los Angeles; County of San Diego; County of Orange; County of Ventura; County of Santa Barbara.
- Delineates the powers of the Secretary of CDFA to issue “cease and desist” orders to the Commission when the Secretary believes the Commission actions are not in the interest of the public or in violation of the law governing the Commission.
- Allows the Commission to establish an assessment rate to defray the operating costs of the Commission.
- Allows the Commission to approve payment of a stipend to Commission members of not more than $145 for each day the Commission member is on official business, not to exceed $725 in a single month.
- Establishes a landing fee of $0.25 for each pound of spiny lobster landed with increases up to $0.50 per pound. The landing fee may exceed $0.50 per pound if it is approved by both a majority of the commission and eligible fishermen as specified.
- Provides sunset dates based on failed activation votes, as specified.
FISCAL EFFECT:
No additional state costs. All costs are covered by the assessment fee or the landing fee.
COMMENTS:
Background and Purpose.
The California spiny lobster is an important natural resource managed by the state for over 100 years. The species supports both a commercial and recreational fishery, and is known as a keystone predator within the southern California nearshore ecosystem. The commercial fishery in California extends from Point Conception (Santa Barbara County) south to the US and Mexico border, and is estimated by the industry to contribute $33 million to $40 million in consumer spending within the California economy. Currently, the majority of commercial spiny lobster is exported due to high price per pound that can be obtained in China (up to $30/lb.). This has contributed to the pressure to effectively manage the resource.
The production of spiny lobster for domestic consumption and export is one of the leading segments of the state’s commercial fishing industry. The fishery credits industry support for appropriate management and regulations in ensuring sustainability of harvest. The establishment of a commission is intended to improve harvesting and processing practices, provide an integrated approach to fishery management, and increase resource assessment, monitoring and protection tools.
The industry believes the unique method of creation of this commission will overcome issues of opposition. Specifically, the vote by the industry, upon chaptering of the legislation, to determine whether or not the commission should be established, is key overcoming opposition within the industry. Failure to meet the initial voting requirements would mean that the commission would not be established.
Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081
Discussed in Hearing
1MIN
Assembly Floor
3MIN
Senate Floor
3MIN
Senate Standing Committee on Appropriations
8MIN
Senate Standing Committee on Judiciary
1MIN
Assembly Floor
54SEC
Assembly Standing Committee on Appropriations
Bill Author
Bill Co-Author(s):