8040-8070
FISH AND GAME CODE
SECTION 8040-8070
8040. The following definitions govern the construction of this
article.
(a) "Commercial fisherman" means a person who has a valid,
unrevoked commercial fishing license issued pursuant to Section 7850.
(b) "Landing tax" means a privilege tax imposed pursuant to this
article.
8041. (a) The following persons shall pay the landing tax
determined pursuant to Section 8042:
(1) Any person who is required to be licensed as a fish receiver,
and any person who is licensed before January 1, 1987, as a
wholesaler or a processor pursuant to former Section 8040 and who
receives fish from commercial fishermen.
(2) Any commercial fisherman who sells fish to any person who is
not a licensed fish receiver.
(b) Notwithstanding subdivision (a), a person licensed pursuant to
Section 8460 who only takes, transports, or sells live freshwater
fish for bait or a commercial fisherman who sells live freshwater
fish for bait to such a licensed person, and a person licensed
pursuant to Section 8033.1 who takes, transports, or sells live
aquaria fish as described in Section 8597 or a commercial fisherman
who sells live aquaria fish, are exempt from the landing tax imposed
under this article. It is the intent of the Legislature that the
license fee for live aquaria fish described in Section 8033.1 shall
be in lieu of a landing tax.
(c) Notwithstanding subdivision (a), a person who purchases,
sells, takes, or receives live marine fish for use as live bait as
described in subdivision (g) of Section 8030 is exempt from the
landing tax imposed under this article.
8042. The amount of the landing tax under this article shall be
determined by multiplying the tax rate for the type of fish delivered
by a commercial fisherman in this state in accordance with the
schedule in Section 8051 by the number of pounds, or fraction
thereof, delivered. If the tax is imposed based upon weight in the
round, and the fish is cleaned, gutted, beheaded, or otherwise not in
the round at the time of delivery, the taxes shall be adjusted by a
conversion factor as determined by the department by regulation.
8043. (a) Every commercial fisherman who sells or delivers fish
that he or she has taken to any person who is not licensed under
Article 7 (commencing with Section 8030), and every person who is
required to be licensed under Article 7 (commencing with Section
8030) to conduct the activities of a fish receiver, as described in
Section 8033, shall make a legible landing receipt record on a form
to be furnished by the department. The landing receipt shall be
completed at the time of the receipt, purchase, or transfer of fish,
whichever occurs first.
(b) The landing receipt shall show all of the following:
(1) The accurate weight of the species of fish received, as
designated pursuant to Section 8045. Sablefish may be reported in
dressed weight, and if so reported, shall have the round weights
computed, for purposes of management quotas, by multiplying 1.6 times
the reported dressed weight.
(2) The name of the fisherman and the fisherman's identification
number.
(3) The department registration number of the boat.
(4) The recipient's name and identification number, if applicable.
(5) The date of receipt.
(6) The price paid.
(7) The department origin block number where the fish were caught.
(8) The type of gear used.
(9) Any other information the department may prescribe.
(c) The numbered landing receipt forms in each individual landing
receipt book shall be completed sequentially. A voided fish landing
receipt shall have the word "VOID" plainly and noticeably written on
the face of the receipt. A voided fish landing receipt shall be
submitted to the department in the same manner as a completed fish
landing receipt is submitted to the department. A fish receiver who
is no longer conducting business as a licensed receiver shall forward
all unused landing receipts and landing receipt books to the
department immediately upon terminating his or her business activity.
8043.1. (a) A person required to be licensed as a marine aquaria
receiver shall make a legible, true, and complete record of the
landing receipts on a form and in a manner prescribed by the
department.
(b) The department may require any information from a person
required to be licensed as a marine aquaria receiver it deems
necessary to carry out this article.
(c) The landing receipt form shall be completed at the time the
organisms are received from the commercial fisherman. A person
required to be licensed as a marine aquaria receiver who takes his or
her own organisms shall complete a marine aquaria landing receipt
form at the time the organisms are brought ashore.
(d) The copies of the aquaria landing receipts shall be delivered
to the department on or before the 1st and 16th day of each month as
provided in Section 8046.
8043.2. (a) A commercial fisherman licensed pursuant to Section
8033.5 who sells fish from a vessel directly to the ultimate consumer
and who is required pursuant to Section 8043 to make a landing
receipt shall make a landing receipt in either of the following ways:
(1) For each individual sale by that fisherman at the time of the
sale.
(2) For each day that the fisherman is engaged in one or more
sales to the ultimate consumers, the fisherman shall maintain an
accurate tally sheet of sales, which shall include complete header
and signature box information filled out prior to any sales, and the
number of pounds by species of fish sold. The total of the daily
sales shall be recorded at the completion of sales for that day on a
landing receipt. A copy of the completed tally sheet shall be
attached to the corresponding landing receipt. The original completed
tally sheet shall be attached to the fisherman's copy of the
corresponding landing receipt and maintained for a period of four
years.
(b) A commercial fisherman licensed pursuant to Section 8033.5 who
sells directly to the ultimate consumer, or a commercial fisherman
who sells or delivers fish that the fisherman has taken to any person
who is not licensed under Article 7 (commencing with Section 8030)
to conduct the activities of a fish receiver, shall not be considered
a weighmaster for purposes of Chapter 7 (commencing with Section
12700) of Division 5 of the Business and Professions Code.
(c) A commercial fisherman selling his or her own catch to the
ultimate customer, upon request by an authorized agent or employee of
the department, shall immediately make available all fish in
possession of the fisherman for inspection and sampling by the agent
or employee. Pursuant to Section 8226, the fisherman shall relinquish
the head from any sampled salmon with a missing adipose fin.
8045. The names used in the landing receipt and transportation
receipt made under Sections 8043 and 8047 for designating the species
of fish dealt with shall be those in common usage unless otherwise
designated by the department.
8046. (a) The original signed copy of the landing receipt made
under Section 8043 or 8043.1 shall be delivered to the department on
or before the 16th or last day of the month in which the fish were
landed, whichever date occurs first after the landing. A copy of the
landing receipt shall be delivered to the commercial fisherman at the
time of the purchase or receipt of the fish. That copy of the
landing receipt shall be retained by the commercial fisherman for a
period of four years and shall be available for inspection at any
time during that period by the department. A copy of the landing
receipt shall be kept by the person licensed pursuant to Article 7
(commencing with Section 8030) who filled out the landing receipt for
a period of four years and shall be available for inspection at any
time within that period by the department.
(b) On delivery of sardines, anchovies, mackerel, squid, tuna, or
bonito intended to be processed or sold as fresh fish, the person
licensed pursuant to Article 7 (commencing with Section 8030) who
filled out the landing receipt, upon request of the authorized agent
described in subdivision (c), shall notify the authorized agent of
the unloading and weighing of the fish and shall permit the
authorized agent to be present at all times during the weighing of
the fish.
(c) A copy of the landing receipt shall be delivered to an agent
authorized in writing by the majority of the persons who participated
in the taking of the fish, excluding the commercial fisherman
receiving the original copy.
8046.1. In addition to the requirements of Section 8046, any person
landing groundfish subject to federal groundfish regulations adopted
pursuant to the Magnuson Fishery Conservation and Management Act (16
U.S.C. Sec. 1801 et seq.) shall keep a copy of the landing receipt
on board the fishing vessel throughout, and for 15 days following,
each period for which cumulative landings by individual vessels are
limited.
8047. (a) (1) A person licensed under Article 7 (commencing with
Section 8030) who takes his or her own fish shall make a legible
record in the form of the landing receipt as required by Sections
8043 and 8043.1 at the time the fish are brought ashore. The original
signed copy of the landing receipt shall be delivered by the
licensee to the department on or before the 16th day or the last day
of the month in which the fish were landed, whichever date occurs
first after landing. A copy of the landing receipt shall be retained
by the licensee for a period of four years and shall be available for
inspection at any time within that period by the department. A copy
of the landing receipt shall be delivered to an agent authorized in
writing by the majority of the persons who participated in the taking
of the fish, excluding the commercial fisherman receiving the
original copy.
(2) A person licensed under Section 8033.5 who sells his or her
fish to a licensed receiver may use a transportation receipt to
transport those fish only to that licensed receiver. The receiver
shall complete a landing receipt for those fish. A person who sells
his or her fish to the ultimate consumer shall complete a landing
receipt pursuant to Sections 8043 and 8043.2. Transportation receipts
shall be completed at the time the fish are transferred from the
fishing vessel.
(b) Every commercial fisherman who sells fish taken from the
waters of this state or brought into this state in fresh condition to
persons not licensed to receive fish for commercial purposes
pursuant to Article 7 (commencing with Section 8030) shall make a
legible record in the form of the landing receipt required by
Sections 8043 and 8043.1. Persons subject to Section 8043 shall remit
the landing tax imposed by Section 8041. The person taking,
purchasing, or receiving the fish, whether or not licensed under
Article 7 (commencing with Section 8030), shall sign the landing
receipt. The original signed copy of the landing receipt shall be
delivered by the commercial fisherman to the department on or before
the first and 16th day of each month. A copy of the landing receipt
shall be retained by the commercial fisherman for a period of four
years and shall be available for inspection at any time within that
period by the department. A copy of the landing receipt shall be
retained by the person taking, purchasing, or receiving the fish
until they are prepared for consumption or otherwise disposed of. A
copy of the landing receipt shall be delivered to an agent authorized
in writing by the majority of the persons who participated in the
taking of the fish, excluding the commercial fisherman receiving the
original copy.
(c) (1) Every commercial fisherman or his or her designee, who
transports, causes to be transported, or delivers to another person
for transportation, any fish, except herring, taken from the waters
of this state or brought into this state in fresh condition, shall
fill out a transportation receipt according to the instructions and
on forms provided by the department at the time the fish are brought
ashore.
(2) The original signed copy of the transportation receipt shall
be delivered by the commercial fisherman to the department on or
before the 16th day or the last day of the month in which the fish
were landed, whichever date occurs first after landing. A copy of the
transportation receipt shall be retained by the commercial fisherman
who filled it out for a period of four years and shall be available
for inspection at any time within that period by the department. A
copy of the transportation receipt shall be given to and retained by
the person transporting the fish until the fish are sold fresh,
processed, or otherwise disposed of.
(3) The transportation receipt is required only for transit
purposes.
(4) A person transporting fish from the point of first landing
under a transportation receipt is not required to be licensed to
conduct the activities of a fish receiver as described in Section
8033.
(5) The transportation book receipt shall be issued to an
individual fisherman and is not transferable.
(d) The transportation receipt shall contain all of the following
information:
(1) The name of each species of fish, pursuant to Section 8045.
(2) The date and time of the receipt.
(3) The accurate weight of the species of fish being transported.
Sablefish may be reported in dressed weight, and if so reported,
shall have the round weights computed, for purposes of management
quotas, by multiplying 1.6 times the reported dressed weight.
(4) The name and identification number of the fisherman. The
signature of the fisherman authorizing transportation.
(5) The name of the person transporting the fish.
(6) The name of the fish business, the fish business
identification number, and the corresponding landing receipt number
issued by the fish business to the commercial fisherman.
(7) The department registration number of the vessel and the name
of the vessel.
(8) The department origin block number where the fish were caught.
(9) The port of first landing.
(10) Any other information the department may prescribe.
(e) The numbered transportation receipt forms in each individual
transportation receipt book shall be completed sequentially. A voided
fish transportation receipt shall have the word "VOID" plainly and
noticeably written on the face of the receipt. A voided fish
transportation receipt shall be submitted to the department in the
same manner as a completed fish transportation receipt is submitted
to the department. A commercial fisherman who is no longer conducting
business as a licensed fisherman shall forward all unused
transportation receipts and transportation receipt books to the
department immediately upon terminating his or her business activity.
8050. (a) In addition to the receipt required in Section 8043,
every person licensed under Article 7 (commencing with Section 8030),
and any commercial fisherman who sells fish to persons who are not
licensed under Article 7 (commencing with Section 8030), and any
person who deals in fresh or frozen fish for profit, shall keep
accounting records in which all of the following shall be recorded:
(1) The names of the different species.
(2) The number of pounds sold, distributed, or taken of each
different species.
(3) The name of the person to whom the fish were sold or
distributed.
(4) The name, address, and phone number of the seller or
distributor.
(5) The date of sale.
(6) The price paid.
(7) The intended use.
(b) Accounting record information required by this section that is
transmitted from any person identified in subdivision (a) to any
business that deals in fish for profit shall be in the English
language.
(c) The accounting records shall be maintained by both buyer and
seller for a period of three years and upon request, shall be open
for inspection during normal business hours by the department. The
accounting records shall be maintained within the State of
California.
(d) The names used for designating the species of fish shall be
those in common usage unless otherwise designated by the department.
8051. (a) The landing tax imposed pursuant to Section 8041 shall be
determined pursuant to Section 8042 by using the tax rates in the
following schedule:
Rate
per
pound
(1) All fish, except as otherwise
specified in this sec-
tion.............................. $0.0013
(2) Mollusks and crustaceans,
excluding squid and
crab ............................. .0125
(3) Crab ......................... .0019
(4) Squid ........................ .0019
(5) Salmon, based only on the
weight in the round .0500
(6) Lobster ...................... .0125
(7) Abalone ...................... .0125
(8) Anchovies .................... .0013
(9) Sardines ..................... .0063
(10) Mackerel..................... .0013
(11) Halibut ..................... .0125
(12) Angel shark, based only on
the weight in the
round ............................ .0113
(13) Swordfish, based only on the
weight in the
round ............................ .0125
(14) Thresher shark, based only
on the weight in the
round ............................ .0113
(15) Bonito shark, based only on
the weight in the
round ............................ .0113
(16) Herring ..................... .0013
(17) Sea urchin .................. .0013
(18) The following fish: ......... .0125
Barracuda
Flying fish
Frogs
Gaint sea bass
Saltwater worms
White sea bass
Yellowtail
(b) This section shall become operative on January 1, 1994.
8051.4. (a) The landing tax collected pursuant to former Section
8051.3 shall be deposited in the Fish and Game Preservation Fund and
shall be used only for the Abalone Resources Restoration and
Enhancement Program. The department shall maintain internal accounts
necessary to ensure that the funds are disbursed for the purposes in
this subdivision. No more of the landing tax collected pursuant to
former Section 8051.3 than an amount equal to the regularly approved
department indirect overhead rate may be used for administration by
the department. Any interest on the revenues from the landing tax
collected pursuant to former Section 8051.3 shall be deposited in the
fund and used for the purposes in this subdivision.
(b) A Commercial Abalone Advisory Committee shall be appointed by
the director, consisting of six members who shall serve without
compensation or reimbursement of expenses. One of the members shall
be a person who was required to pay landing taxes pursuant to Section
8051.3 during the 1996-97 permit year. Each of the five remaining
members shall have held a commercial abalone diving permit during the
1996-97 permit year, and represent the following groups and
organizations:
(1) One member shall be selected from divers with a place of
residence north of Point Sur.
(2) One member shall be selected from divers with a place of
residence south of Point Dume.
(3) One member shall be selected from divers with a place of
residence south of Point Sur and north of Point Dume.
(4) Two members shall be selected from the membership of the
California Abalone Association without regard to place of residence.
This subdivision does not prohibit persons selected pursuant to
paragraph (1), (2), or (3) from also being members of the California
Abalone Association.
(c) The advisory committee shall make recommendations to the
director and the director shall use his or her best efforts to
implement those recommendations for activities to be conducted with
funds collected pursuant to Section 8051.3, and those funds collected
from any previous calendar year shall be available for use for those
activities.
(d) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted statute
that is enacted before January 1, 2013, deletes or extends that
date.
8052. Landing taxes shall be used only for the administration of
laws relating to the commercial fishing industry, except as follows:
(a) Not less than 90 percent of the landing tax on herring taken
for roe shall be expended for research and management activities to
maintain and enhance the herring resources within the waters of this
state.
(b) Not less than 90 percent of the landing tax on thresher shark
or bonito (mako) shark shall be expended for the study required by,
and for the costs of administering, Article 16 (commencing with
Section 8560) of Chapter 2.
8053. Landing taxes imposed by this article shall be paid quarterly
to the department within 30 days after the close of each quarter.
If any landing tax is not paid within 30 days after the close of
the quarter for which it is due, the department shall collect amounts
owing under the procedures prescribed for sales and use taxes
provided in Chapter 5 (commencing with Section 6451) and Chapter 6
(commencing with Section 6701) of Part 1 of Division 2 of the Revenue
and Taxation Code, insofar as they may be applicable, and for those
purposes, "board" means the department and "the date on which the tax
became due and payable" means that date 30 days after the close of
the quarter for which it is due.
8055. All moneys received as a privilege tax from persons who
receive salmon from fishermen under the provisions of this article
shall be used only for the purpose of propagating salmon.
8056. Except as otherwise provided in this article, all moneys
collected pursuant to this article shall be paid to the department,
and shall be expended for the patrol of packing plants, inspection
and regulation of the fishing industry, and conservation work for the
benefit of the commercial fishing industries.
8057. If the department determines that any tax or penalty has been
paid more than once or has been erroneously or illegally collected
or computed, the department shall set forth that fact in the records
of the department. The excess amount collected or paid shall be
credited on any amounts then due and payable from the person under
this part, and the balance shall be refunded to the person, or his
successors, administrators, or executors.
8058. In the event of overpayment of any of the taxes imposed by
this article, the taxpayer may file a claim for refund or a claim for
credit with the department. No refund or credit shall be approved by
the department unless the claim therefor is filed with the
department within six months after the close of the calendar year in
which the overpayment was made.
8059. Every claim for refund or credit for overpayment of a landing
tax shall be in writing and shall state the specific grounds upon
which the claim is founded.
8060. Failure to file a claim for refund or credit within the time
prescribed in this article constitutes a waiver of any demand against
the state on account of overpayment of a landing tax or taxes.
8061. Within 30 days after disallowing any claim for refund or
credit for overpayment of a landing tax in whole or in part, the
department shall serve notice of its action on the claimant, either
personally or by mail. If served by mail, service shall be made
pursuant to Section 1013 of the Code of Civil Procedure and shall be
addressed to the licensee at his address as it appears in the records
of the department, but the service shall be deemed complete at the
time of the deposit of the notice in the mail without extension of
time for any reason.
8062. Interest shall be paid upon any overpayment of a landing tax
at the rate of one-half of 1 percent per month from the date of
overpayment. The interest shall be paid to the date the claim for
refund or credit is approved by the department.
8063. If the department determines that any overpayment of a
landing tax has been made intentionally or by reason of carelessness,
it shall not allow any interest thereon.
8064. No injunction or writ of mandate or other legal or equitable
process shall issue in any suit, action, or proceeding in any court
against this state or against any officer of the state to prevent or
enjoin the collection under this article of any landing tax.
8065. No suit or proceeding shall be maintained in any court for
the recovery of any amount of landing tax alleged to have been
erroneously paid or erroneously or illegally determined or collected
unless a claim for refund or credit has been duly filed pursuant to
Sections 8058 and 8059.
8066. Within 90 days after the mailing of the notice of the
department's action upon a claim filed pursuant to Sections 8058 and
8059, the claimant may bring an action against the department on the
grounds set forth in the claim in a court of competent jurisdiction
in any city or city and county of this State in which the Attorney
General has an office for the recovery of the whole or any part of
the amount with respect to which the claim has been disallowed.
Failure to bring action within the time specified constitutes a
waiver of any demand against the State on account of alleged
overpayments.
8067. If the department fails to mail notice of action on a claim
for refund or credit for overpayment of a landing tax within six
months after the claim is filed, the claimant may, prior to the
mailing of notice by the department of its action on the claim,
consider the claim disallowed and bring an action against the
department on the grounds set forth in the claim for the recovery of
the whole or any part of the amount claimed as an overpayment.
8068. If judgment is rendered for the plaintiff, the amount of the
judgment shall first be credited on any landing tax due and payable
from the plaintiff to the state under this article. The balance of
the judgment shall be refunded to the plaintiff.
8069. In any judgment, interest shall be allowed at the legal rate
of interest on unsatisfied judgments, as provided in Section 685.010
of the Code of Civil Procedure, upon the amount found to have been
illegally collected from the date of payment of the amount to the
date of allowance of credit on account of the judgment or to a date
preceding the date of the refund warrant by not more than 30 days,
the date to be determined by the department.
8070. A judgment shall not be rendered in favor of the plaintiff in
any action brought against the department to recover any amount paid
when the action is brought by or in the name of an assignee of the
person paying the amount or by any person other than the person who
paid the amount.