1. (a) Definitions. Herring Eggs on Kelp (HEOK) may only be taken by harvesting giant kelp (Macrocystis spp.), with spawn (i.e., eggs) attached, which has been artificially suspended using the following two (2) methods: rafts and/or lines, a technique commonly known as the “open pound” method. For the purposes of the HEOK fishery only, the following definitions shall apply:

   1. (1) “Fishing” means:

      1. (A) the act of suspending giant kelp (Macrocystis spp.) for the purposes of taking herring eggs;
      2. (B) the period during which kelp is suspended in anticipation of harvesting; and/or
      3. (C) harvesting.
   2. (2) “Harvesting” means the act of removing HEOK from the water for the purposes of processing for sale and/or transport to market.
   3. (3) “Processing” means the act of separating or removing kelp blades (with herring eggs attached) from the stipe of harvested HEOK, trimming the product, rinsing, brining, grading the product, and loading the processed blades into bins or totes.
   4. (4) A raft is defined as a temporary, mobile structure with a metal, wood or plastic frame. The total surface area of each raft is not to exceed 2,500 square feet.
   5. (5) A line is defined as a piece of line of no more than 1,200 feet in overall length that is suspended under a suitable permanent structure (e.g., pier or dock), or between two permanent structures (e.g., piers or docks).

2. (b) Area Restrictions.

   1. (1) HEOK may be harvested only from the waters of San Francisco Bay. For purposes of this section, San Francisco Bay is defined as the waters of Fish and Wildlife Districts (District) 11, 12, 13 and that part of District 2 known as Richardson Bay.
   2. (2) Rafts and/or lines may not be placed in any waters or areas otherwise closed or restricted to the use of herring gill nets operating pursuant to Section 163.1 of these regulations, except where written approval is granted by the owners or controlling agency (e.g., Navy, Coast Guard).
   3. (3) Rafts may be placed in Belvedere Cove or Richardson Bay only if they are tied to a permanent structure (e.g., pier, dock or rock wall, natural stationary shoreline structures), and permittees have obtained prior written approval. Buoys are not permanent structures.
3. (c) Fishing Season. The HEOK fishing season is December 1 to March 31.

4. (d) Gear Requirements.

   1. (1) Not more than two (2) rafts and/or two (2) lines may be used per permit.

      1. (A) Each raft shall have a light at each corner that may be seen for at least a distance of 100 yards.
      2. (B) Each raft shall be further identified with the fishing vessel number the HEOK permit has been assigned to in Roman alphabet letters and Arabic numerals at least 14 inches high and 2 inches wide, painted on a white background and permanently affixed to the raft.
      3. (C) Kelp lines shall have floats or cork over the entire length of line.
      4. (D) If kelp lines are suspended under a permanent structure (e.g., pier or dock), or if a raft is tied up to a permanent structure (e.g., pier, dock or rock wall, natural stationary shoreline structures), the permittee shall obtain prior written approval from the appropriate owners or controlling agency (e.g., wharfinger, Coast Guard, Navy or private owner). Buoys are not permanent structures.
      5. (E) Lines shall be marked at the beginning and the end while fishing, excluding suspending kelp and harvesting, with a light that may be seen for at least a distance of 100 yards.
      6. (F) Each line shall be further identified at each end with a contrasting-colored buoy displaying above its waterline, in legible Roman alphabet letters and Arabic numerals at least 2 inches high, the department registration number of the designated fishing vessel listed on the HEOK permit.

5. (e) Notification Requirements.

   1. (1) Permittees shall notify the department using the contact information designated on the HEOK permit within a 12-hour period prior to beginning the following activities:

      1. (A) The suspension of kelp on a raft and/or lines.
      2. (B) Harvest of HEOK.
      3. (C) Landing of HEOK.
   2. (2) Permittees shall supply the vessel registration number, departure point of vessel, location of each raft, estimated suspension/landing/harvest time, point of landing, and contact number.
   3. (3) If any of this information changes after notification is given, the permittee shall again notify the department using the contact information designated on the HEOK permit.
6. (f) Noise. All permittees, authorized agents, vessel operators, crew, or employees shall recognize city ordinances governing transient noise sources.
7. (g) Marine Mammals. The use of explosives and /or seal bombs in the HEOK sector is prohibited.

8. (h) Landing Requirements

   1. (1) For the purposes of this section, all portions of the kelp blade, including all trimmed-off portions (trim), shall be considered part of the harvested product and included in the total weight of HEOK. The stipe and pneumatocyst shall not be considered a part of the harvested product; therefore, the weight of the stipe and pneumatocyst shall not be considered in determining the total weight of HEOK.
   2. (2) All bins or totes shall be permanently marked with individualized serial numbers, beginning with the prefix CA, and predetermined tare weights (including lids). The serial number and predetermined tare weight shall be permanently marked in letters and numerals at least 3 inches high on each side of the bin or tote.
   3. (3) Filled bins or totes shall be weighed when landed on-shore, or before they are moved from the premises if processing takes place on-shore.
   4. (4) HEOK shall not be landed/off-loaded between the hours of 10:00 p.m. and 6:00 a.m.
   5. (5) Any HEOK taken for commercial purposes shall only be delivered to a person having a Herring Buyer's Permit pursuant to subsection 163.5(a) of these regulations.
   6. (6) All HEOK landed in excess of any quota established in accordance with Section 55.02(d) of these regulations shall be forfeited to the department by the signing of a Release of Property form DFW 1108, as specified in subsection 705.1(c). Such excess of HEOK shall be sold or disposed of, and the proceeds from all such sales shall be paid into the Fish and Game Preservation Fund.

9. (i) Processing Requirements.

   1. (1) Any person engaged in, or employed for the specific purpose of, processing HEOK shall fall under the category of non-applicability in regard to possession of a commercial fishing license pursuant to Section 7850.5 of the Fish and Game Code. Pursuant to Section 7850.5 of the Fish and Game Code, a person engaged in processing (permittees and authorized agents excepted) may stand aboard a HEOK vessel while at a dock or landing, but may not be transported aboard the vessel. A person engaged in processing (permittees and authorized agents excepted) may not stand on the HEOK raft, nor physically participate in the removal of HEOK from the water.
   2. (2) Permittee shall have a certified scale aboard the vessel at all times if any brining is conducted aboard that vessel. This scale shall be used to determine the total weight of HEOK prior to brining.

Note: Authority cited: Sections 7071 and 7078, Fish and Game Code. Reference: Section 7071, Fish and Game Code.

History

1. New section filed 10-8-69 as an emergency; designated effective 11-10-69 (Register 69, No. 41). For history of prior section, see Register 63, No. 1.

2. Certificate of Compliance--section 11422.1, Government Code, filed 12-17-69 (Register 69, No. 51).

3. Amendment filed 6-30-78; effective thirtieth day thereafter (Register 78, No. 26).

4. Amendment of Note filed 10-19-81; effective thirtieth day thereafter (Register 81, No. 43).

5. Amendment filed 3-29-90; operative 3-29-90 (Register 90, No. 19).

6. Amendment of subsections (i) and (j) filed 10-23-91; operative 11-22-91 (Register 92, No. 5).

7. Amendment of subsections (f)(2), (i) and (i)(2) filed 11-10-92; operative 12-10-92 (Register 92, No. 46).

8. Amendment of subsections (i)(2) and (j)(2), new subsection (j)(2)(D) and amendment of Note filed 10-28-93; operative 11-28-93 (Register 94, No. 45).

9. Amendment of subsections (i)(2), (i)(4), (j)(2), (j)(3), (j)(5) and (j)(6) filed 11-30-94; operative 11-3-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 45).

10. Amendment filed 11-7-95; operative 11-7-95 pursuant to Fish and Game Code section 202 and 215 (Register 95, No. 45).

11. Amendment of subsections (j)(3)(D)-(j)(4) and Note filed 11-15-95; operative 11-15-95 pursuant to Fish and Game Code sections 202 and 215 (Register 95, No. 46).

12. Amendment of subsections (c), (i)(4)(A), (i)(5), (j)(7) and (j)(7)(B) filed 11-12-96; operative 11-12-96 pursuant to Fish and Game Code sections 202 and 215 (Register 96, No. 46).

13. Amendment of section and Note filed 10-17-97; operative 10-17-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 42).

14. Amendment of subsection (i)(4), repealer of subsection (j)(3)(A)-(C) designators and amendment of newly reorganized subsection (j)(3) filed 10-30-98; operative 10-30-98 pursuant to Fish and Game Code sections 202 and 215 (Register 98, No. 44).

15. Amendment of subsections (a), (f)(2), (g)(1), (i)-(i)(5), (j)(5) and (m) and new subsections (f)(3) and (i)(6) filed 11-1-99; operative 11-1-99 pursuant to Fish and Game Code section 202 (Register 99, No. 45).

16. Amendment filed 10-27-2000; operative 10-27-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 43).

17. Amendment of section and Note filed 10-31-2001; operative 11-1-2001 pursuant to Fish and Game Code section 215 (Register 2001, No. 44).

18. Amendment of subsections (h)(1), (j), (j)(4) and (k)(8)(B) filed 10-21-2002; operative 10-21-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 43).

19. Amendment of subsections (h)(1), (i) and (j)(4) filed 11-13-2003; operative 11-15-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 46).

20. Amendment of subsections (e) and (f)(1)(B), new subsection (f)(1)(C) and amendment of subsections (h)(1), (i)-(j), (j)(4), (k)(5) and (k)(9) filed 11-3-2004; operative 11-3-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 45).

21. Amendment of subsections (h)(1) and (j)(4) filed 12-19-2005; operative 12-19-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 51).

22. Amendment of subsections (h)(1), (j)(6) and (n) filed 12-1-2006; operative 12-1-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 48).

23. Amendment of subsections (h)(1) and (j)(4) filed 11-28-2007; operative 11-28-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 48).

24. Amendment of subsection (h)(1), repealer and new subsection (h)(2) and amendment of Note filed 7-8-2008; operative 7-8-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 28).

25. Amendment of subsections (h)(1) and (j)(4) filed 10-23-2008; operative 11-22-2008 (Register 2008, No. 43).

26. Amendment of subsections (e)(3), (h)(1) and (j)(4) and amendment of Note filed 11-18-2009; operative 12-18-2009 (Register 2009, No. 47).

27. Amendment of subsections (h)(1) and (j)(4) filed 11-9-2010; operative 12-9-2010 (Register 2010, No. 46).

28. Amendment of subsections (h)(1), (j)(4) and (j)(6) and amendment of Note filed 11-17-2011; operative 12-17-2011 (Register 2011, No. 46).

29. Amendment of subsection (j)(4) filed 11-2-2012; operative 11-2-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 44).

30. Amendment of subsections (c), (g)(3), (j), (j)(2), (j)(4)-(5), (j)(7), (k)(2), (k)(8)(B) and (m) and amendment of Note filed 10-30-2013; operative 10-30-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 44).

31. Amendment of subsection (g)(3) filed 10-13-2014; operative 10-13-2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 42).

32. Amendment of subsections (g)(3), (h)(2) and (j)(4) filed 11-30-2015; operative 12-1-2015 pursuant to Government Code section 11343.4(b)(3) (Register 2015, No. 49).

33. Amendment of section heading, repealer and new section and amendment of Note filed 2-27-2020; operative 3-1-2020 pursuant to Government Code section 11343.4(b)(4)(A) and Fish and Game Code section 265 (Register 2020, No. 9).

34. Amendment of subsections (a)-(a)(1), new subsections (a)(1)(A)-(C), amendment of subsections (a)(3), (d)(1)(E)-(F), (f)-(g) and (h)(4) and amendment of Note filed 9-2-2020; operative 11-30-2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 36).

35. Amendment of subsection (h)(6) filed 11-21-2023; operative 1-1-2024 (Register 2023, No. 47).