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SB-1128 Commercial fishing: inspection: crab traps: eviscerated Dungeness crab.(2019-2020)

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Date Published: 03/26/2020 09:00 PM
SB1128:v98#DOCUMENT

Amended  IN  Senate  March 26, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 1128


Introduced by Senator McGuire
(Coauthors: Senators Dahle, Dodd, and Nielsen)
(Coauthor: Assembly Member Gallagher)

February 19, 2020


An act to amend Section 8283 of, and to add Sections 7711 and 8285 to, the Fish and Game Code, and to add Article 15 (commencing with Section 111224) to Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, relating to commercial fishing. fishing, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


SB 1128, as amended, McGuire. Commercial fishing: inspection: crab traps: eviscerated Dungeness crab.
(1) Existing law prohibits a person from using or operating, or assisting in using or operating, a boat, aircraft, net, trap, line, or other appliance to take fish for commercial purposes unless the person holds a commercial fishing license issued by the Department of Fish and Wildlife. Existing law generally requires any person who engages in any business for profit involving fish to have a commercial fish business license issued by the department, and requires specialty licenses for specified classes of fish business. Existing law authorizes the department to enter and examine any canning, packing, preserving, or reduction plant, or place of business where fish or other fishery products are packed, preserved, manufactured, bought or sold, or board any fishing boat, barge, lighter, tender, or vehicle or receptacle containing fish, and ascertain the amount of fish received, or kind and amount of fishery products packed or manufactured and the number and size of containers or cans for fishery products purchased, received, used, or on hand and to examine any books and records containing any account of fish caught, bought, canned, packed, stored, or sold. Existing law requires all fish taken or otherwise dealt with under the law to be exhibited upon demand to any person authorized by the department to enforce any law relating to the protection and conservation of fish. A violation of the Fish and Game Code or a regulation adopted pursuant to the code is a crime.
This bill would require a person who holds a commercial fishing license or a commercial fish business license, upon request of an authorized agent or employee of the department, to make available a fish or part of a fish to the department for the purpose of inspection and to immediately relinquish, at no charge, a fish or part parts of a fish caught or landed in California to the department for the purpose of collecting a biological sample. The bill would authorize a civil penalty against a person who violates these requirements, as specified. Because a violation of this provision would be a crime, this bill would impose a state-mandated local program.
(2) Existing law authorizes crab traps to be set and baited 64 hours prior to the opening date of the Dungeness crab season in Fish and Game Districts 6, 7, 8, and 9. Existing law also authorizes crab traps to be set and baited in advance of that opening date in those districts if no other attempt is made to take or possess Dungeness crab in those districts. Existing law also provides, except in Fish and Game Districts 6, 7, 8, and 9, that crab traps may be set and baited 18 hours in advance of the opening date of the Dungeness crab season, if no other attempt is made to take or possess Dungeness crab.
This bill would instead authorize crab traps to be set and baited 64 hours before the opening date of the Dungeness crab season regardless of the Fish and Game District. The bill would also make conforming changes.
(3) Existing state law, the Sherman Food, Drug, and Cosmetic Law, makes it unlawful to manufacture, sell, deliver, hold, or offer for sale adulterated food. Existing law prescribes when a food is adulterated, including if it bears or contains any poisonous or deleterious substance that may render it injurious to the health of a person or other animal that may consume it. Existing law makes a violation of the Sherman Food, Drug, and Cosmetic Law or a regulation adopted pursuant to that law a misdemeanor.
Existing law authorizes the Director of Fish and Wildlife to order the closure of any waters or otherwise restrict the taking in state waters of any species of fish if the Director of Environmental Health Hazard Assessment, in consultation with the State Public Health Officer, determines that the species or subspecies of fish is likely to pose a human health risk from high levels of toxic substances. Existing law provides for the Director of Fish and Wildlife, upon receiving notification from the Director of Environmental Health Hazard Assessment that a human health risk no longer exists and a request to reopen those waters, to reopen those waters in a manner that promotes a fair and orderly fishery. A violation of the Fish and Game Code or a regulation adopted pursuant to the code is a crime.
This bill would authorize the State Department of Public Health to adopt regulations to authorize the manufacture, sale, delivery, holding, or offering for sale of eviscerated Dungeness crab that is caught in waters where the department determined that the viscera of Dungeness crab exceeds allowable levels of domoic acid for Dungeness crab adopted by the department if the meat of Dungeness crab does not exceed allowable levels of domoic acid for Dungeness crab adopted by the department. The bill would require the State Department of Public Health to adopt these regulations consistent with specified requirements. Because a violation of these provisions would be a crime, this bill would imposed impose a state-mandated local program.
The bill would require the State Department of Public Health to order the evisceration, as defined, of Dungeness crab if the domoic acid for Dungeness crab exceeds the allowable levels in certain areas when specified criteria exist. The bill would require the State Department of Public Health to only authorize the evisceration of Dungeness crab by a licensed processor, as defined, that also has a specified plan approved by the State Department of Public Health for handling and preparing eviscerated crab, and would also require the State Department of Public Health to establish labeling requirements for eviscerated crab, as specified, and to require the processor to maintain written recall procedures.
The bill would require the State Department of Public Health to consult with a certain Dungeness crab task force or a replacement task force or committee to establish the criteria for the manufacture, sale, delivery, holding, or offering for sale of Dungeness crab caught in areas subject to an evisceration order by the State Department of Public Health. The bill would require the State Department of Public Health to publish notice of the proposed criteria, as specified, and make the criteria effective by operation of law as regulations 90 days after the notice is published.
The bill would require the Department of Fish and Wildlife to adopt regulations that govern the commercial take of Dungeness crab during a time period when the State Department of Public Health authorizes the manufacture, sale, delivery, holding, or offering for sale of eviscerated Dungeness crab pursuant to the above-described provisions. The bill would require these regulations to require the holder of a Dungeness crab vessel permit to submit to electronic monitoring of the vessel while engaged in the take of Dungeness crab, as specified, and to restrict the sale of Dungeness crab by the person who takes Dungeness crab to a person who is authorized to purchase and sell eviscerated Dungeness crab by the State Department of Public Health pursuant to the provisions described above. specified. The bill would authorize a person who takes Dungeness crab to sell or provide the Dungeness crab only to a processor approved by the State Department of Public Health, as specified. Because a violation of these provisions would be a crime, this bill would impose a state-mandated local program.
(4) 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.
(5) This bill would declare that it is to take effect immediately as an urgency statute.
Vote: MAJORITY2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares both of the following:
(a) In the event of a human health risk, the Director of Fish and Wildlife has the existing authority to impose restrictions on a part or parts of an individual fish available through the fishery.
(b) A statutory framework for providing the Director of Fish and Wildlife with authority to impose restrictions on a part or parts of an individual fish for public consumption needs to be established.

SECTION 1.SEC. 2.

 Section 7711 is added to the Fish and Game Code, to read:

7711.
 (a) A person shall, upon request by an authorized agent or employee of the department, immediately do either or both of the following: relinquish, at no charge, a fish or parts of a fish caught or landed in California to the department for the purpose of collecting a biological sample.

(1)Make available a fish or part of a fish to the department for the purpose of inspection.

(2)Relinquish, at no charge, a fish or part of a fish to the department for the purpose of collecting a biological sample.

(b)(1)Notwithstanding Section 12000, a violation of this section is not subject to criminal penalty.

(2)Notwithstanding Section 7857 or 8032.5 or any other law, a license described in subdivision (d) or any other license issued to a person to take a fish for commercial purposes shall not be suspended, revoked, or canceled for a violation of this section.

(c)A person who violates this section is subject to the following penalties:

(1)No penalty for the first violation and the person shall be given a warning.

(2)A civil penalty of no less than one hundred dollars ($100) and no more than two hundred fifty dollars ($250) for the second violation.

(3)A civil penalty of no less than two hundred fifty dollars ($250) and no more than five hundred dollars ($500) for the third violation.

(4)A civil penalty of no less than five hundred dollars ($500) and no more than one thousand dollars ($1,000) for the fourth violation or subsequent violation.

(d)

(b) For purposes of this section, “person” means a person licensed pursuant to Section 7850 or a person licensed pursuant to Article 7 (commencing with Section 8030).

SEC. 2.SEC. 3.

 Section 8283 of the Fish and Game Code is amended to read:

8283.
 Crab traps may be set and baited 64 hours before the opening date of the Dungeness crab season. Crab traps may be set and baited in advance of that opening date if no other attempt is made to take or possess Dungeness crab.

SEC. 3.SEC. 4.

 Section 8285 is added to the Fish and Game Code, to read:

8285.
 The department shall adopt regulations that govern the commercial take of Dungeness crab from waters during a time period when the State Department of Public Health authorizes the manufacture, sale, delivery, or offering for sale of eviscerated Dungeness crab pursuant to Article 15 (commencing with Section 111224) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code in accordance with the following requirements:
(a) The department shall require the holder of a Dungeness crab vessel permit to submit to electronic monitoring of the vessel while engaging in the take of Dungeness crab to verify the locations where the Dungeness crab is taken.

(b)The department shall restrict the sale of Dungeness crab by the person who takes Dungeness crab to a person approved by the State Department of Public Health to purchase and sell eviscerated crab pursuant to Article 15 (commencing with Section 111224) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code.

(b) A person who takes Dungeness crab is authorized to sell or provide the Dungeness crab only to a processor approved by the State Department of Public Health pursuant to Article 15 (commencing with Section 111224) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code.

SEC. 4.SEC. 5.

 Article 15 (commencing with Section 111224) is added to Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, to read:
Article  15. Eviscerated Crab

111224.
 (a) The For purposes of this article, the following terms have the following meanings:
(1) “Eviscerate” or “evisceration” means the processor’s action of removing and discarding the entire intestinal tract, hepatopancreas, and all associated abdominal organs in accordance with this article.
(2) “Eviscerated Dungeness crab” means Dungeness crab in which the viscera has been removed in accordance with regulations adopted pursuant to this section.
(3) “Hazard Analysis Critical Control Point plan” means a hazard analysis critical control point plan as described in Section 123.6 of Title 21 of the Code of Federal Regulations or a replacement federal definition.
(4) “Processor” means any person engaged in commercial, custom, or institutional processing of fish or fishery products in California, in another state, or in a foreign country. A processor includes any person engaged in the production of foods that are to be used in market or consumer tests.
(b) The department may adopt regulations to authorize the manufacture, sale, delivery, holding, or offering for sale of eviscerated Dungeness crab that is caught in waters where the department determined that the viscera of Dungeness crab exceeds allowable levels of domoic acid for Dungeness crab adopted by the department if the meat of Dungeness crab does not exceed allowable levels of domoic acid for Dungeness crab adopted by department.

(b)

(c) The regulations adopted pursuant to this section shall meet the following requirements:
(1) The department shall only authorize the sale, delivery, holding, or offering for sale of eviscerated Dungeness crab that is caught in waters that is are not closed for the take of Dungeness crab for commercial purposes pursuant to Section 5523 of the Fish and Game Code.
(2) The department shall only authorize the manufacture sale, delivery, holding, or offering for sale of eviscerated Dungeness crab by a person licensed pursuant to Article 7 (commencing with Section 8030) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code and who has a Hazard Analysis Critical Control Point plan approved by the department for handling and preparing eviscerated crab.
(3) The department shall adopt written recall procedures.
(4) The department shall establish requirements for labeling eviscerated crab to identify harvest location, harvest date, or lot code, or any combination of these things.

(c)For purposes of this section, “eviscerated Dungeness crab” means Dungeness crab in which the viscera has been removed in accordance with regulations adopted pursuant to this section.

111224.5.
 The department shall order the evisceration of Dungeness crab if the domoic acid for Dungeness crab exceeds the allowable levels in a specified area, when all of the following criteria exist:
(a) The Dungeness crab is caught in waters closed for the take of Dungeness crab for commercial purposes pursuant to Section 5523 of the Fish and Game Code.
(b) The department has determined the viscera of the Dungeness crab exceeds the allowable levels of domoic acid.
(c) The department has determined the corresponding meat of the Dungeness crab does not exceed the allowable level of domoic acid.

111224.6.
 (a) (1) The department shall only authorize the evisceration of Dungeness crab by a processor that is licensed pursuant to Article 2 (commencing with Section 110460) and that has a Hazard Analysis Critical Control Point plan approved by the department for handling and preparing eviscerated crab.
(2) The department shall establish requirements for labeling eviscerated crab to identify harvest location, harvest date, or lot code, or any combination of these things.
(3) The department shall require the processor to maintain written recall procedures.
(b) (1) The department shall consult with the Dungeness crab task force established pursuant to Section 8276.4 of the Fish and Game Code or a replacement task force or committee to establish the criteria for the manufacture, sale, delivery, holding, or offering for sale of Dungeness crab that is subject to Section 111224.5.
(2) The Dungeness crab criteria established under this subdivision shall become effective by operation of law as a regulation adopted under this article 90 days after the department publishes the notice required by paragraph (3).
(3) The department shall publish a notice in the California Regulatory Notice Register of the department’s proposed Dungeness crab criteria. The notice shall include the proposed text and justification for the addition, change, or deletion of the Dungeness crab criteria to allow public comment. The department shall consider the public comments.
(c) This section shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

SEC. 5.SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B 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 XIII B of the California Constitution.

SEC. 7.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure a safe and orderly Dungeness crab fishery for the 2020–21 Dungeness crab fishing season, it is necessary for this act to take effect immediately.