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§ 91. Marine Fisheries: Experimental Fishing Permit Program.

14 CA ADC § 91Barclays Official California Code of Regulations

Barclays California Code of Regulations
Title 14. Natural Resources
Division 1. Fish and Game Commission--Department of Fish and Game (Refs & Annos)
Subdivision 1. Fish, Amphibians and Reptiles (Refs & Annos)
Chapter 5.6. Experimental Fishing Permit Program
14 CCR § 91
§ 91. Marine Fisheries: Experimental Fishing Permit Program.
(a) Purpose and scope. This section implements the Experimental Fishing Permit (EFP) Program pursuant to Section 1022 of the Fish and Game Code. The commission may authorize the department to issue an EFP for commercial or recreational marine fishing activities otherwise prohibited by the Fish and Game Code or any regulation adopted pursuant thereto for authorized activities.
(b) Definitions. Definitions contained in subdivision (h) of Section 1022 of the Fish and Game Code for “compensation fishing,” “conservation engineering,” and “exploratory fishing” apply. In addition, for purposes of this section, the following definitions apply:
(1) Accepted application: An EFP application packet accepted by the department as complete and eligible for further consideration by the commission.
(2) Applicant: The individual or entity applying for the EFP who, upon approval by the commission, becomes the EFP holder.
(3) Authorized activities: Activities approved under the EFP for one or any combination of the following purposes: research, education, limited testing, data collection, compensation fishing, conservation engineering, or exploratory fishing.
(4) Authorized agent: An individual who may conduct authorized activities and serve in place of the EFP holder for all activities requiring the presence or action of the EFP holder and who is named on form DFW 1103, Marine Fisheries: Experimental Fishing Permit Terms and Conditions (see subsection 704(b)(2) of these regulations), if applicable.
(5) EFP holder: The individual or entity to whom an EFP is issued.
(6) Entity: A corporation, firm, partnership, association, institution or affiliation, Native American tribe, or a local, state, or federal agency.
(7) Entity administrator: An individual designated by an entity who shall oversee all activities conducted under the permit on the entity's behalf and serve as the primary point of contact for department inquires for the EFP. Both the entity and entity administrator shall be liable for any violations of this section or any authorizations, terms, or conditions of the EFP.
(8) Interested persons: Every person who has informed the commission in writing of their interest and has provided their mailing address or email address to be notified of any accepted applications.
(9) Key participants: Project participants including the applicant, and if applicable, the entity administrator and any authorized agents.
(10) Project: The experimental fishing project for which an EFP is needed.
(c) Application procedures and application fee. Each EFP application must be submitted to the department pursuant to the provisions in this subsection.
(1) Pre-application consultation. Prior to applying for the EFP, a prospective applicant must consult with the department's marine region for consideration of any request for assistance from the department pursuant to subsection (c)(2)(C) or a permit fee reduction option pursuant to subsection (m)(3). Pre-application consultation is encouraged but not required for all other EFP proposals. Requests for consultation must be submitted in writing to the appropriate point of contact listed on the department's EFP web page: https://wildlife.ca.gov/Conservation/Marine/EFP.
(2) An application packet. An applicant shall submit a written application packet, either electronically to the email address, or by delivery to the mailing address listed on the department's EFP web page (https://wildlife.ca.gov/Conservation/Marine/EFP) and pay the non-refundable application fee as specified in subsection 704(b)(1) of these regulations. To be complete, the application packet must contain the following elements:
(A) Contact information for key participants. Contact information must include the name, title, affiliation, mailing address, email address, telephone number, and the Automated License Data System Get Outdoors ID (GO ID) or commercial fishing license (CFL) number for all key participants.
1. If any key participant does not have a GO ID or CFL number, they must provide the following information: their true name, residence address, date of birth, height, color of eyes, color of hair, weight, gender, telephone number, email address, and a form of identification as listed in subsection 700.4(c) of these regulations.
2. If the applicant is an entity, the contact information should be that of the entity administrator.
(B) A statement of purpose, including:
1. A description of the purpose and goals of the proposed project, including how the project meets or is consistent with the policies in Section 7050 of the Fish and Game Code.
2. A list of project activities that are prohibited under current Fish and Game Code or state fishing regulations, and the reasons to justify the authorization of those activities.
(C) A statement of qualifications demonstrating the ability of the key participants to perform the duties and responsibilities listed in this subsection. If the applicant does not have the capability to directly perform or oversee the performance of the following duties and responsibilities, the applicant may request assistance from the department pursuant to subsection (c)(1).
1. Lead and provide supervisory oversight for all activities of the permit under the authorizations, standard terms pursuant to subsection (h), and special conditions pursuant to subsection (i).
2. Experience in identification, methods, and protocols specific to the requested taxa under subsection (c)(2)(E).
3. Obtain all appropriate authorizations and oversee quality control measures to assure conformance to the specified standards or requirements.
4. Train all persons operating under the permit.
5. Coordinate field activities and communicate field findings with the department's marine region.
6. Collect, analyze, and transmit data gathered under the EFP to the department's marine region.
(D) The specific permit tier (see subsection (m)(2)) for which the applicant is applying and what consultation, if any, has occurred with the department regarding the proposed project, including the name and contact information of the department staff with whom the applicant has consulted in accordance with subsection (c)(1).
(E) The project description, including:
1. A description of the experimental design and research plan, including the methodology of the project with specific procedures for data collection, storage, processing, and analysis; and a timeline for implementing the project, including, if applicable, the time period during which compensation fishing is expected to occur.
2. A list of target species expected to be harvested as samples or for compensation under the EFP, including anticipated amounts (weight or number) and disposition of target species taken (retained, sold, or other (e.g., tagged and released)).
3. A list of species expected to be taken incidental to fishing conducted under the EFP, including anticipated amounts (weight or number), disposition of incidental species taken (retained, sold, discarded, or other (e.g., tagged and released)), and a description of any measures that will be used to reduce incidental catch mortality.
4. A description of the mechanisms to ensure that the proposed catch limit (weight or number) for target and incidental species are not exceeded and are accurately tracked or monitored (e.g., at sea fisheries observers, electronic monitoring, or other reporting method), if any; and, if applicable, a description of the vessel's capacity to accommodate an onboard observer.
5. A description of any potential impacts on existing fisheries, habitat, or possible incidental interactions with threatened, endangered, or protected species (e.g., sea turtles, marine mammals, and birds) that could occur as a result of the project.
6. The type and amount of gear to be used, including gear specifications and design, and, if applicable, a description of any bycatch reduction devices that will be used. If the project involves gear modifications or other gear innovations, the description must include the means by which department staff can locate, retrieve, and inspect the proposed gear.
7. The location and timing of the project. The description must include trip specifications, such as fishing depth, anticipated number of trips, expected trip duration, and estimated number of hauls and average soak time (for fixed gear) or estimated number of tows/sets to be made per day, and estimated duration and speed per tow (for mobile gear). For vessels listed under subsection (c)(2)(F), the description must also identify any fishing activity that is expected to occur on the same trip as the project for purposes other than those provided by the EFP.
(F) Project vessels to be authorized by the EFP (if applicable), including:
1. Vessel name.
2. Names, addresses, and telephone numbers of vessel owners, and any vessel operators.
3. For any vessel that will be used in commercial fishing activity related to the permit, the commercial boat registration number issued pursuant to Section 7881 of the Fish and Game Code.
4. For any vessel that will not be used in commercial fishing activity related to the permit, the commercial boat registration number issued pursuant to Section 7881 of the Fish and Game Code or a copy of the United States Coast Guard Certificate of Documentation. If there is no commercial boat registration number or Certificate of Documentation for the vessel, a copy of the vessel's state registration is required.
(G) Signature: The date of the application and the signature of the applicant.
(d) Department review of an EFP application.
(1) Following the receipt of an application, the department shall accept or reject an application and provide notification of such determination within 30 days from the date the application fee payment clears.
(A) Rejection of an application by the department.
1. The department shall reject the application as incomplete if it fails to contain the information required under subsection (c)(2).
2. The department may reject an application if any key participant has failed to comply with the terms or conditions of a state or federal fishing license or permit, has violated any provision of the Fish and Game Code or regulations adopted thereto or any applicable federal or state law regulating fishing activities, has had a fishing license or permit suspended or revoked, or has been convicted of a crime of moral turpitude.
3. If an application is rejected, the department shall provide written notification to the applicant with an explanation for the rejection.
4. Amended application. Within 10 working days of department notification of an application rejection, the applicant may submit an amended application packet that corrects deficiencies outlined in the notice of rejection under the original application fee.
5. Within 30 days of receiving an amended application, the department shall notify the applicant of its final determination in accordance with the provisions of subsections (d)(1)(A)3. or (d)(1)(B).
(B) Acceptance of an application by the department. The department shall accept an application if it is not rejected under subsection (d)(1)(A). The department shall notify the applicant that the application has been accepted and transmit the accepted application to the commission.
(2) Department technical review and recommendation. Within 60 days after an accepted application is transmitted to the commission, the department shall develop and transmit to the commission a recommendation, including any permit special conditions. In developing its recommendation, the department shall consider the information provided pursuant to subsection (c)(2) and may request of the applicant any additional information it deems necessary to evaluate the project for purposes of developing permit special conditions and shall report any failure to comply with such requests to the commission.
(3) Time extension for department review. During its review of an EFP application, the department may extend any of the time limits specified in subsection (d). The department shall provide written notification of the time extension under subsection (d)(1) to the applicant, and under subsection (d)(2) to the commission and the applicant. The written notification shall include an explanation of the reason additional time is required.
(e) Public notice of and comment on an EFP application.
(1) Notice of receipt of an accepted EFP application. Within 5 working days of receipt of an accepted application, the commission shall send notice to interested persons pursuant to subsection (e)(3), including a summary of the proposed project, species involved, and opportunities for public comment.
(2) Notice of receipt of department recommendation. At least 30 days prior to taking action on an accepted application, the commission shall send notice to interested persons pursuant to subsection (e)(3), and post on its website information concerning accepted EFP applications that include:
(A) Public notices related to the EFP application and the department recommendation.
(B) The application.
(C) Department recommendation, including any permit special conditions.
(3) Direct notification to interested persons.
(A) The commission shall mail or email the notice to interested persons.
(B) The commission may mail or email the notice to any person or group of persons whom the commission believes to be interested.
(f) Commission action on an EFP application.
(1) At its next available meeting, but not sooner than 30 days after public notice is given pursuant to subsection (e)(2), the commission shall schedule the application and any proposed permit special conditions for consideration.
(2) The commission may approve or deny the application and/or any permit special conditions.
(A) If the commission approves the application, the department shall issue the permit pursuant to subsection (g).
(B) The commission shall deny an application if it determines any of the following applies:
1. Key participants failed to disclose material information or provided false, misleading, or inaccurate statements as to any material fact in connection with the application.
2. Based on the best scientific information available, alone or in combination with other approved EFPs, the project would have a detrimental effect on any fish stock, marine mammal, or species designated as threatened, endangered, or fully protected; or have an adverse impact on any resource or resource allocation, established fisheries, or marine habitat.
3. The project is inconsistent with this section, Section 1022 or Section 7050 of the Fish and Game Code, any applicable fishery management plan, or other applicable law for which an exemption is not sought.
(C) If an application is denied, the commission shall notify the applicant in writing of the reasons for denial and the decision thereon within 60 days of the denial.
(g) Department issuance of an EFP.
(1) Upon approval of an application by the commission, the department shall send to the applicant for signature a completed form DFW 1103, including any commission-approved special conditions placed on the permit pursuant to subsection (f)(2).
(2) The EFP shall be issued upon department receipt of payment of the applicable EFP fees and a copy of form DFW 1103 signed and dated by the applicant.
(h) Permit standard terms. Standard terms of the EFP are set forth on form DFW 1103.
(i) Permit special conditions.
(1) Special conditions of the EFP are specified on form DFW 1103.
(2) Special conditions placed on a permit as necessary for research purposes or the conservation and management of marine resources and the environment may include:
(A) The maximum amount and size of each species that can be caught, harvested and/or landed during the term of the project, including bag/trip limit, annual harvest limit, or other restrictions placed on take.
(B) The timing of the authorized activities, and the geographic location where such activity may occur.
(C) A citation of current fishing laws and regulations from which the authorized activities are exempted.
(D) The type, size, and amount of gear that can be used by each person or vessel operating under the EFP, and any other restrictions placed on the gear.
(E) The number, size, name, and identification number of the vessels and/or names and addresses of authorized agents covered under the EFP, and identification of any additional fishing permits or licenses that are required to conduct the authorized activities.
(F) The method for marking or identifying gear or vessels operating under the EFP.
(G) The procedures and/or type of equipment to be used to monitor and track the authorized activities, collect data, or provide for personnel safety.
(H) Data reporting requirements for the authorized activities, including the method, format, content, and timeframe for submittal of the required information to the department.
(I) Other conditions necessary to ensure compliance with Section 1022 of the Fish and Game Code and the regulations provided in this section.
(j) It is unlawful to operate under an EFP in violation of the permit standard terms and special conditions as set forth on form DFW 1103.
(k) Permit updates and amendments.
(1) Department authorized amendments. At any time during the term of the permit, the department may amend the special conditions set forth on form DFW 1103 as it deems necessary for research purposes or the conservation and management of marine resources and the environment.
(A) Amendments to the special conditions shall not exceed the allowances placed on the permit by the commission pursuant to subsection (i) concerning:
1. the amount and type of species that may be taken,
2. the geographic location where fishing may occur,
3. the amount or type of gear that can be used, and
4. the number of vessels or persons that may conduct the authorized activities.
(B) Upon amending the special conditions of the EFP, the department shall provide written notification to the commission and EFP holder, including the reasons for the amendments, and the EFP holder's right to request that the department review and reconsider the department's amended conditions pursuant to subsection (p).
(C) The department may suspend the EFP if the EFP holder fails to return a signed and dated copy of an amended form DFW 1103 within 10 days following date of the written notice.
(2) EFP holder requested amendments. At any time during the term of the permit, EFP holders may request amendments to their EFP by submitting a written request, either electronically or by delivery to the mailing address listed on the department's EFP web page (https://wildlife.ca.gov/Conservation/Marine/EFP) and paying the applicable non-refundable amendment fee as specified in subsection 704(c) of these regulations. The written request must include a description of the proposed changes and the reasons for the changes.
(A) Types of EFP holder requested amendments.
1. Administrative updates. Updates to contact, affiliation, or vessel information are administrative changes that may be approved and made by the department and do not require payment of a fee.
2. Minor amendments. Amendments to the EFP that are subject to the limitations described in subsection (k)(1)(A) which may be approved and made by the department.
3. Major amendments. Amendments to the EFP that exceed the allowances placed on the permit concerning subsection (k)(1)(A), and are subject to the same department review, public notice, and commission action, and department issuance procedures specified in subsections (d)(2) through (g).
(B) If a request for administrative update or minor amendment is rejected, the department shall provide written notification to the EFP holder with an explanation for the rejection and the EFP holder's right to file a request for reconsideration pursuant to subsection (p).
(3) Approved amendments do not change or extend the expiration date of the original permit.
(l) Reports.
(1) The EFP holder shall submit an annual report to the department by the date specified in the permit special conditions summarizing the authorized activities carried out during the reporting period. The annual report must describe the activities conducted and results, including a summary of any impediments encountered or deviations that occurred.
(2) Within 60 days after the permit expiration date, the EFP holder shall submit to the department a final report and any scientific reports or other documents created as a result of the authorized activities. The final report must provide:
(A) A summary describing the original purpose and activities completed under the EFP.
(B) A discussion of results and findings of the EFP project, including any conclusions on the effectiveness of the authorized activities in achieving the goals of the project, and recommendations for improving fisheries management or expanding commercial or recreational opportunities.
(C) Any additional information as required by the special conditions of the EFP.
(D) A list of all key participants who participated, in whole or in part, including a description of their contribution to the project.
(m) Permit tier structure and fees.
(1) Initial permit issuance fee. Except as provided for in subsection (m)(3), the department shall charge a non-refundable fee for the initial issuance of an EFP, as specified in subsection 704(b)(3) of these regulations.
(2) Annual permit fee. Except as provided in subsection (m)(3), the EFP holder shall pay a non-refundable annual permit fee as specified in subsection 704(b)(4) of these regulations for the EFP based on the designated permit tier.
(A) Tier 1. EFP for the purpose identified under subsection (b)(3) except for exploratory fishing.
(B) Tier 2. EFP for the purpose identified under subsection (b)(3) except for exploratory fishing and facilitated by the department pursuant to subsection (c)(2)(C).
(C) Tier 3. EFP for the purpose of exploratory fishing.
(D) Tier 4. EFP for the purpose of exploratory fishing and facilitated by the department pursuant to subsection (c)(2)(C).
(3) Permit fee reduction option. A 50 percent reduction in the initial permit issuance fee listed in subsection 704(b)(3) and annual permit fee listed in subsection 704(b)(4) of these regulations may be considered and approved as a special condition by the commission at the time of approval of the EFP on a case-by-case basis, as recommended by the department.
(A) The department may identify projects for the permit fee reduction as it deems necessary to address a specific fishery management need or priority in any of the following categories:
1. Innovative fishing gear and techniques to reduce incidental capture of non-target species, habitat impacts, and/or interactions with protected species.
2. Data collection to fill essential fishery information gaps or monitoring needs for fisheries and associated habitat.
3. New data or methods to quantify catch and effort and/or standardize data reporting for recreational or commercial fisheries.
4. Other areas of research that may be necessary for the purpose of fishery management pursuant to Section 7050 of the Fish and Game Code.
(B) Pre-application consultation is required pursuant to subsection (c)(1).
(n) Term of permit and renewal. Permits are valid for one year and may be renewed annually by the department up to three times provided all of the following requirements are met:
(1) The EFP holder shall submit a written request to the email or mailing address listed on the department's EFP web page (https://wildlife.ca.gov/Conservation/Marine/EFP) to renew the EFP at least 60 days prior to the expiration date of the current permit.
(2) Upon review and determination by the department that all key participants have complied with the requirements, terms, and conditions of this section and form DFW 1103 to be eligible for a permit renewal.
(3) Payment of the designated annual permit fee pursuant to subsection (m)(2) must be received by the department's license and revenue branch on or before the annual expiration date of the EFP.
(o) Permit revocation, suspension, cancellation, or non-renewal.
(1) An EFP holder may submit a written request for cancellation to the department's license and revenue branch.
(2) The EFP shall be subject to revocation, suspension, cancellation, or non-renewal by the department for any of the following reasons:
(A) Failure to comply with the authorizations, conditions, or terms of the permit.
(B) Failure to comply with any provision of the Fish and Game Code or regulations adopted pursuant thereto that are not otherwise exempted by the permit; violation of any federal statute, regulation, or rule that is related to a regulated fishing activity; or conviction of a crime of moral turpitude.
(C) Reasons listed subdivision 1022(a)(2) of the Fish and Game Code.
(D) A change in the Fish and Game Code or regulations adopted pursuant thereto, or to any federal statute, regulation, or rule that prohibits the continuation of the authorized activities.
(E) Submittal of false information for the purposes of obtaining or renewing a permit.
(F) The purpose of the project has been achieved or the EFP produces information at a level deemed by the department sufficient to support a management action.
(G) Failure to pay the designated annual permit fee pursuant to subsection (n)(3).
(3) The department shall provide written notification to the EFP holder of any action to revoke, suspend, cancel, or deny renewal of an EFP. The notice must include: the name of the EFP holder, the EFP identification number, the reason for the revocation, suspension, cancellation, or renewal denial, a description of any actions necessary for the EFP holder to correct any deficiencies (if applicable), and the EFP holder's right to request reconsideration by the department.
(4) An EFP holder whose permit has been suspended or revoked shall turn over all records produced under the terms and conditions of the EFP pursuant to department's direction. If applicable, an EFP holder whose permit has been revoked, suspended, or cancelled or whose permit renewal has been denied shall turn over all department owned equipment including, but not limited to, fishing gear, electronic monitoring equipment, storage devices, trap tags, etc. Failure to return department owned equipment by a permittee as described in this subsection shall be unlawful.
(p) Reconsideration. A person or entity who receives a notice of revocation, suspension, cancellation, or modification of their permit from the department, or a notice that their permit renewal has been denied or permit amendment has been rejected by the department, may submit a written request for reconsideration to the department no later than 30 days following the date of the notification, and shall state the reasons for the requested reconsideration. The department shall consider any information submitted with the request, and it may reverse or amend its decision.

Credits

Note: Authority cited: Sections 200, 205 and 1022, Fish and Game Code. Reference: Sections 200, 205 and 1022, Fish and Game Code.
History
1. New section filed 3-2-2022; operative 4-1-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 9).
This database is current through 11/11/22 Register 2022, No. 45.
Cal. Admin. Code tit. 14, § 91, 14 CA ADC § 91
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