¹370.142 Spiny lobster trap certificate program.--

1. (1) INTENT.--Due to rapid growth, the spiny lobster fishery is experiencing increased congestion and conflict on the water, excessive mortality of undersized lobsters, a declining yield per trap, and public concern over petroleum and debris pollution from existing traps. In an effort to solve these and related problems, the Legislature intends to develop pursuant to the provisions of this section a spiny lobster trap certificate program, the principal goal of which is to stabilize the fishery by reducing the total number of traps, which should increase the yield per trap and therefore maintain or increase overall catch levels. The Legislature seeks to preserve as much flexibility in the program as possible for the fishery's various constituents and ensure that any reduction in total trap numbers will be proportioned equally on a percentage basis among all users of traps in the fishery.

2. (2) TRANSFERABLE TRAP CERTIFICATES; TRAP TAGS; FEES; PENALTIES.--The Department of Environmental Protection shall establish a trap certificate program for the spiny lobster fishery of this state and shall be responsible for its administration and enforcement as follows:

   1. (a) Transferable trap certificates.--Each holder of a saltwater products license who uses traps for taking or attempting to take spiny lobsters shall be required to have a certificate on record for each trap possessed or used therefor, except as otherwise provided in this section.

      1. The department shall initially allot such certificates to each licenseholder with a current crawfish trap number who uses traps. The number of such certificates allotted to each such licenseholder shall be based on the trap/catch coefficient established pursuant to trip ticket records generated under the provisions of s. 370.06(2)(a) over a 3-year base period ending June 30, 1991. The trap/catch coefficient shall be calculated by dividing the sum of the highest reported single license-year landings up to a maximum of 30,000 pounds for each such licenseholder during the base period by 700,000. Each such licenseholder shall then be allotted the number of certificates derived by dividing his or her highest reported single license-year landings up to a maximum of 30,000 pounds during the base period by the trap/catch coefficient. Nevertheless, no licenseholder with a current crawfish trap number shall be allotted fewer than 10 certificates. However, certificates may only be issued to individuals; therefore, all licenseholders other than individual licenseholders shall designate the individual or individuals to whom their certificates will be allotted and the number thereof to each, if more than one. After initial issuance, trap certificates are transferable on a market basis and may be transferred from one licenseholder to another for a fair market value agreed upon between the transferor and transferee. Each such transfer shall, within 72 hours thereof, be recorded on a notarized form provided for that purpose by the department and hand delivered or sent by certified mail, return receipt requested, to the department for recordkeeping purposes. In addition, in order to cover the added administrative costs of the program and to recover an equitable natural resource rent for the people of the state, a transfer fee of $2 per certificate transferred shall be assessed against the purchasing licenseholder and sent by money order or cashier's check with the certificate transfer form. Also, in addition to the transfer fee, a surcharge of 25 percent of the fair market value given to the transferor shall be assessed the first time a certificate is transferred outside the original transferor's immediate family. No transfer of a certificate shall be effective until the department receives the notarized transfer form and the transfer fee, including any surcharge, is paid. The department may establish by rule an amount of equitable rent per trap certificate that shall be recovered as partial compensation to the state for the enhanced access to its natural resources. In determining whether to establish such a rent and, if so, the amount thereof, the department shall consider the amount of revenues annually generated by certificate fees, transfer fees, surcharges, trap license fees, and sales taxes, the demonstrated fair market value of transferred certificates, and the continued economic viability of the commercial lobster industry. The proceeds of equitable rent recovered shall be deposited in the Marine Resources Conservation Trust Fund and used by the department for research, management, and protection of the spiny lobster fishery and habitat.

      2. No person, firm, corporation, or other business entity may control, directly or indirectly, more than 1.5 percent of the total available certificates in any license year.

      3. The department shall maintain records of all certificates and their transfers and shall annually provide each licenseholder with a statement of certificates held.

      4. The number of trap tags issued annually to each licenseholder shall not exceed the number of certificates held by the licenseholder at the time of issuance, and such tags and a statement of certificates held shall be issued simultaneously.

   2. (b) Trap tags.--Each trap used to take or attempt to take spiny lobsters in state waters or adjacent federal waters shall, in addition to the crawfish trap number required by s. 370.14(2), have affixed thereto an annual trap tag issued by the department. Each such tag shall be made of durable plastic or similar material and shall, beginning with those tags issued for the 1993-1994 season based on the number of certificates held, have stamped thereon the owner's license number. To facilitate enforcement and recordkeeping, such tags shall be issued each year in a color different from that of each of the previous 3 years. A fee of 50 cents per tag issued other than on the basis of a certificate held shall be assessed through March 31, 1993. Until 1995, an annual fee of 50 cents per certificate shall be assessed, and thereafter, until 1998, an annual fee of 75 cents per certificate shall be assessed upon issuance in order to recover administrative costs of the tags and the certificate program. Beginning in 1998, the annual certificate fee shall be $1 per certificate. Replacement tags for lost or damaged tags may be obtained as provided by rule of the department.

   3. (c) Prohibitions; penalties.--

      1. (I) Pay the civil penalty to the department; or

      2. (II) Request an administrative hearing pursuant to the provisions of s. 120.60.

         e. The department shall suspend the crawfish trap number issued pursuant to s. 370.14(2) or (7) for any person failing to comply with the provisions of sub-subparagraph d.

         4.

         a. It is unlawful for any person to make, alter, forge, counterfeit, or reproduce a spiny lobster trap tag or certificate.

         b. It is unlawful for any person to knowingly have in his or her possession a forged, counterfeit, or imitation spiny lobster trap tag or certificate.

         c. It is unlawful for any person to barter, trade, sell, supply, agree to supply, aid in supplying, or give away a spiny lobster trap tag or certificate or to conspire to barter, trade, sell, supply, aid in supplying, or give away a spiny lobster trap tag or certificate unless such action is duly authorized by the department as provided in this chapter or in the rules of the department.

         5.

         a. Any person who violates the provisions of subparagraph 4., or any person who engages in the commercial harvest, trapping, or possession of spiny lobster without a crawfish trap number as required by s. 370.14(2) or (7) or during any period while such crawfish trap number is under suspension or revocation, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

         b. In addition to any penalty imposed pursuant to sub-subparagraph a., the department shall levy a fine of up to twice the amount of the appropriate surcharge to be paid on the fair market value of the transferred certificates, as provided in subparagraph (a)1., on any person who violates the provisions of sub-subparagraph 4.c.

         6. Any certificates for which the annual certificate fee is not paid for a period of 3 years shall be considered abandoned and shall revert to the department. During any period of trap reduction, any certificates reverting to the department shall become permanently unavailable and be considered in that amount to be reduced during the next license-year period. Otherwise, any certificates that revert to the department are to be reallotted in such manner as provided by the department.

         7. The proceeds of all civil penalties collected pursuant to subparagraph 3. and all fines collected pursuant to sub-subparagraph 5.b. shall be deposited into the Marine Resources Conservation Trust Fund.

         8. All traps shall be removed from the water during any period of suspension or revocation.

      1. It is unlawful for a person to possess or use a spiny lobster trap in or on state waters or adjacent federal waters without having affixed thereto the trap tag required by this section. It is unlawful for a person to possess or use any other gear or device designed to attract and enclose or otherwise aid in the taking of spiny lobster by trapping that is not a trap as defined in rule 46-24.006(2), Florida Administrative Code.

      2. It is unlawful for a person to possess or use spiny lobster trap tags without having the necessary number of certificates on record as required by this section.

      3. Unless otherwise provided in this section, a commercial harvester, as defined by rule 46-24.002(1), Florida Administrative Code, who violates the provisions of this section, or the provisions of chapter 46-24, Florida Administrative Code, shall be punished as follows:

      a. If the first violation is for violation of subparagraph 1. or subparagraph 2., the department shall assess a civil penalty of up to $1,000 and the crawfish trap number issued pursuant to s. 370.14(2) or (7) may be suspended for the remainder of the current license year. For all other first violations, the department shall assess a civil penalty of up to $500.

      b. For a second violation of subparagraph 1. or subparagraph 2. which occurs within 24 months of any previous such violation, the department shall assess a civil penalty of up to $2,000 and the crawfish trap number issued pursuant to s. 370.14(2) or (7) may be suspended for the remainder of the current license year.

      c. For a third or subsequent violation of subparagraph 1. or subparagraph 2. which occurs within 36 months of any previous two such violations, the department shall assess a civil penalty of up to $5,000 and may suspend the crawfish trap number issued pursuant to s. 370.14(2) or (7) for a period of up to 24 months or may revoke the crawfish trap number and, if revoking the crawfish trap number, may also proceed against the licenseholder's saltwater products license in accordance with the provisions of s. 370.021(2)(e).

      d. Any person assessed a civil penalty pursuant to this section shall within 30 calendar days after notification:

   4. (d) No vested rights.--The trap certificate program shall not create vested rights in licenseholders whatsoever and may be altered or terminated as necessary to protect the spiny lobster resource, the participants in the fishery, or the public interest.
3. (3) TRAP REDUCTION.--The objective of the overall trap certificate program is to reduce the number of traps used in the spiny lobster fishery to the lowest number that will maintain or increase overall catch levels, promote economic efficiency in the fishery, and conserve natural resources. Therefore, the Marine Fisheries Commission shall set an overall trap reduction goal based on maintaining or maximizing a sustained harvest from the spiny lobster fishery. To reach that goal, the commission shall, by July 1, 1992, set an annual trap reduction schedule, not to exceed 10 percent per year, applicable to all certificateholders until the overall trap reduction goal is reached. All certificateholders shall have their certificate holdings reduced by the same percentage of certificates each year according to the trap reduction schedule. The department shall then issue the number of trap tags authorized by the commission, as requested, and a revised statement of certificates held. Certificateholders may maintain or increase their total number of certificates held by purchasing available certificates from within the authorized total. The commission shall provide for an annual evaluation of the trap reduction process and shall suspend the annual percentage reductions for any period deemed necessary by the commission in order to assess the impact of the trap reduction schedule on the fishery. The commission may then, by rule, resume, terminate, or reverse the schedule as it deems necessary to protect the spiny lobster resource and the participants in the fishery.

4. (4) TRAP CERTIFICATE TECHNICAL ADVISORY AND APPEALS BOARD.--There is hereby established the Trap Certificate Technical Advisory and Appeals Board. Such board shall consider and advise the department on disputes and other problems arising from the implementation of the spiny lobster trap certificate program. The board may also provide information to the department on the operation of the trap certificate program.

   1. (a) 1. The board shall consist of the secretary of the department or designee and nine other members appointed by the secretary, after determination of the initial certificate allotments by the department, according to the following criteria, except as otherwise provided in subparagraph 2.:

      a. All appointed members shall be certificateholders, but two shall be holders of fewer than 100 certificates, two shall be holders of at least 100 but no more than 750 certificates, three shall be holders of more than 750 but not more than 2,000 certificates, and two shall be holders of more than 2,000 certificates.

      b. At least one member each shall come from Broward, Dade, and Palm Beach Counties; and five members shall come from the various regions of the Florida Keys.

      c. At least one appointed member shall be a person of Hispanic origin capable of speaking English and Spanish.

      2. The secretary of the department may fill any position on the initial board with a member who does not fulfill the requirements of subparagraph 1. if there are not enough qualified individuals available to meet those requirements. However, as soon as enough qualified individuals are available to meet those requirements, the secretary must replace all nonqualified appointees with qualified appointees.

   2. (b) The term of each appointed member shall be for 4 years, and any vacancy shall be filled for the balance of the unexpired term with a person of the qualifications necessary to maintain the requirements of subparagraph (a)1. However, of the initial appointees, three shall serve for terms of 4 years, two shall serve for terms of 3 years, two shall serve for terms of 2 years, and two shall serve for terms of 1 year. There shall be no limitation on successive appointments to the board.
   3. (c) The secretary of the department or designee shall serve as a member and shall call the organizational meeting of the board. The board shall annually elect a chair and a vice chair. There shall be no limitation on successive terms that may be served by a chair or vice chair. The board shall meet at the call of its chair, at the request of a majority of its membership, at the request of the department, or at such times as may be prescribed by its rules. A majority of the board shall constitute a quorum, and official action of the board shall require a majority vote of the total membership of the board present at the meeting.
   4. (d) The procedural rules adopted by the board shall conform to the requirements of chapter 120.
   5. (e) Members of the board shall be reimbursed for per diem and travel expenses as provided in s. 112.061.
   6. (f) Upon reaching a decision on any dispute or problem brought before it, including any decision involving the allotment of certificates under paragraph (g), the board shall submit such decision to the secretary of the department for final approval. The secretary of the department may alter or disapprove any decision of the board, with notice thereof given in writing to the board and to each party in the dispute explaining the reasons for the disapproval. The action of the secretary of the department constitutes final agency action.
   7. (g) In addition to those certificates allotted pursuant to the provisions of subparagraph (2)(a)1., up to 125,000 certificates may be allotted by the board to settle disputes or other problems arising from implementation of the trap certificate program during the 1992-1993 and 1993-1994 license years. Any certificates not allotted by March 31, 1994, shall become permanently unavailable and shall be considered as part of the 1994-1995 reduction schedule. All appeals for additional certificates or other disputes must be filed with the board before October 1, 1993.
   8. (h) Any trap certificates issued by the department as a result of the appeals process must be added to the existing number of trap certificates for the purposes of determining the total number of certificates from which the subsequent season's trap reduction is calculated.
   9. (i) On and after July 1, 1994, the board shall no longer consider and advise the department on disputes and other problems arising from implementation of the trap certificate program nor allot any certificates with respect thereto.
5. (5) DISPOSITION OF FEES AND SURCHARGES.--Transfer fees and surcharges, annual trap certificate fees, and recreational tag fees collected pursuant to paragraphs (2)(a) and (b) shall be deposited in the Marine Resources Conservation Trust Fund and used for administration of the trap certificate program, research and monitoring of the spiny lobster fishery, and enforcement and public education activities in support of the purposes of this section and shall also be for the use of the Marine Fisheries Commission in evaluating the impact of the trap reduction schedule on the spiny lobster fishery; however, at least 15 percent of the fees and surcharges collected shall be provided to the commission for such evaluation.

6. (6) RULEMAKING AUTHORITY.--The Department of Environmental Protection may adopt rules to implement the provisions of this section.

   ¹Note.--Section 5, ch. 91-154, provides that ". . . after April 1, 1998, the Marine Fisheries Commission is not precluded from initiating rulemaking proceedings utilizing any of the concepts or measures addressed in [former chapters 46-24.006(1)(d), 46-24.003(4), and that portion of former chapter 46-24.003(3), F.A.C. regarding an effective date in conflict herewith.]"

History.--s. 1, ch. 90-317; ss. 1, 3, 4, ch. 91-154; s. 5, ch. 91-429; s. 2, ch. 92-60; ss. 10, 12, ch. 93-223; s. 229, ch. 94-356; s. 994, ch. 95-148; s. 33, ch. 96-321; s. 98, ch. 96-410.