CSHB 41(FIN): "An Act relating to management of enhanced stocks of shellfish; authorizing certain nonprofit organizations to engage in shellfish enhancement projects; authorizing the Department of Fish and Game to collect fee revenue from applicants for certain salmon hatchery permits and from applicants for shellfish enhancement project permits; relating to application fees for salmon hatchery permits; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 41(FIN) 01 "An Act relating to management of enhanced stocks of shellfish; authorizing certain 02 nonprofit organizations to engage in shellfish enhancement projects; authorizing the 03 Department of Fish and Game to collect fee revenue from applicants for certain salmon 04 hatchery permits and from applicants for shellfish enhancement project permits; 05 relating to application fees for salmon hatchery permits; and providing for an effective 06 date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 16.05.730(c) is amended to read: 09 (c) The board may 10 (1) consider the need of enhancement projects authorized under 11 AS 16.10.400 and contractors who operate state-owned enhancement projects under 12 AS 16.10.480 to harvest and sell fish produced by the enhancement project that are not 13 needed for brood stock to obtain funds for the purposes allowed under AS 16.10.450
01 or 16.10.480(d); 02 (2) consider the need of enhancement projects authorized under 03 AS 16.12.010 to harvest and sell shellfish that are not needed for brood stock to 04 obtain funds for the purposes allowed under AS 16.12.080; 05 (3) [. THE BOARD MAY] exercise its authority under this title as it 06 considers necessary to direct the department to provide a reasonable harvest of fish, in 07 addition to the fish needed for brood stock, to an enhancement project to obtain funds 08 for the enhancement project if the harvest is consistent with sustained yield of wild 09 fish stocks; and 10 (4) [. THE BOARD MAY] adopt a fishery management plan to 11 provide fish to an enhancement project to obtain funds for the purposes allowed under 12 AS 16.10.450, [OR] 16.10.480(d), or AS 16.12.080. 13 * Sec. 2. AS 16.10.400(b) is amended to read: 14 (b) The application for a permit under this section shall be on a form 15 prescribed by the department and be accompanied by an application fee in the 16 amount determined under (h) of this section [$100]. The commissioner may waive 17 the submission of an application for a permit to operate a hatchery under 18 AS 16.10.480. 19 * Sec. 3. AS 16.10.400 is amended by adding new subsections to read: 20 (h) The department shall establish by regulation an application fee under this 21 section in an amount that provides for the total amount of fees collected under (b) of 22 this section to approximately equal the department's actual regulatory costs under this 23 chapter. The department shall annually review the fee level to determine whether the 24 department's regulatory costs under this chapter are approximately equal to the fees 25 collected. If the review indicates that fee collections and regulatory costs are not 26 approximately equal, the department shall adjust the application fee by regulation. In 27 January of each year, the department shall report the fee level and any revision made 28 for the previous year under this subsection to the office of management and budget. 29 (i) The salmon hatchery permit fees collected under (b) of this section shall be 30 deposited in the state treasury. Under AS 37.05.146(c), the fees shall be accounted for 31 separately, and appropriations from the account are not made from the unrestricted
01 general fund. The legislature may appropriate money from the account for 02 expenditures by the department for necessary costs incurred by the department in the 03 administration of this chapter. Nothing in this subsection creates a dedicated fund or 04 dedicates the money in the account for a specific purpose. Money deposited in the 05 account does not lapse at the end of a fiscal year unless otherwise provided by an 06 appropriation. 07 * Sec. 4. AS 16 is amended by adding a new chapter to read: 08 Chapter 12. Shellfish Enhancement Projects. 09 Sec. 16.12.010. Permits for shellfish enhancement projects. (a) Subject to 10 the restrictions imposed by statute or regulation under this chapter, the commissioner 11 may issue a permit to a nonprofit corporation organized under AS 10.20 for a shellfish 12 enhancement project. 13 (b) Each applicant for a permit under this section shall apply in a format 14 prescribed by the department and pay an application fee in the amount determined 15 under (f) of this section. 16 (c) A permit issued under this section is nontransferable. If a permit holder 17 sells or leases a facility for which a permit has been issued under this section, the new 18 operator shall apply for a permit under this section. 19 (d) The commissioner shall consult with and solicit recommendations from 20 federal and state agencies and technical experts in the relevant area regarding permit 21 stipulations and issuance. 22 (e) The commissioner may not issue a permit under this section unless the 23 commissioner determines that the action would result in substantial public benefits and 24 would not jeopardize natural stocks. 25 (f) The department shall establish by regulation an application fee under this 26 section in an amount that provides for the total amount of fees collected under (b) of 27 this section to approximately equal the department's actual regulatory costs under this 28 chapter. The department shall annually review the fee level to determine whether the 29 department's regulatory costs under this chapter are approximately equal to the fees 30 collected. If the review indicates that fee collections and regulatory costs are not 31 approximately equal, the department shall adjust the application fee by regulation. In
01 January of each year, the department shall report the fee level and any revision made 02 for the previous year under this subsection to the office of management and budget. 03 (g) The shellfish enhancement project permit fees collected under (b) of this 04 section shall be deposited in the state treasury. Under AS 37.05.146(c), the fees shall 05 be accounted for separately, and appropriations from the account are not made from 06 the unrestricted general fund. The legislature may appropriate money from the account 07 for expenditures by the department for necessary costs incurred by the department in 08 the administration of this chapter. Nothing in this subsection creates a dedicated fund 09 or dedicates the money in the account for a specific purpose. Money deposited in the 10 account does not lapse at the end of a fiscal year unless otherwise provided by an 11 appropriation. 12 Sec. 16.12.020. Hearings before permit issuance. (a) At least 30 days before 13 the issuance of a permit under AS 16.12.010, the department shall hold a public 14 hearing in a central location in the vicinity of the proposed release of shellfish. 15 (b) Notice of the hearing shall be published in a newspaper of general 16 circulation once a week for three consecutive weeks, with completion of the notice at 17 least five days before the hearing. 18 (c) The department shall conduct the hearing. The applicant shall present a 19 plan for the proposed shellfish enhancement project describing relevant facts that may 20 be of interest to the department or to the public and the capacity of the facility. The 21 department shall give interested members of the public an opportunity to be heard. 22 (d) The department shall record and consider objections and recommendations 23 offered by the public at the hearing conducted under this section. The department shall 24 respond in writing, not later than 30 days after the hearing is held, to a specific 25 objection offered by a member of the public at the hearing. 26 Sec. 16.12.030. Conditions of a permit. The department shall require, in a 27 permit issued under this chapter, that the permit holder 28 (1) procure shellfish from the department or a source approved by the 29 department; 30 (2) place shellfish only in water of the state specifically designated in 31 the permit;
01 (3) not procure or place genetically modified shellfish into the water of 02 the state; 03 (4) not resell or transfer shellfish sold to a permit holder by the state or 04 by another party approved by the department; 05 (5) not release shellfish before approval of the department, and, for 06 purposes of pathological examination and approval, that the permit holder notify the 07 department at least 15 days before the date of the proposed release of shellfish; 08 (6) destroy diseased shellfish in a specific manner and place designated 09 by the department; 10 (7) harvest shellfish only at specific locations and under specific 11 conditions as designated by the department; 12 (8) make surplus shellfish available for sale first to the department and 13 then, after inspection and approval by the department, to other permit holders 14 operating under this chapter; 15 (9) provide a copy of the sales transaction to the department if surplus 16 shellfish are sold by a permit holder to another permit holder; 17 (10) release shellfish in an area where the shellfish will be available to 18 traditional fisheries, subject to the provisions of this chapter and regulations adopted 19 under this chapter. 20 Sec. 16.12.040. Alteration, suspension, or revocation of permit. (a) If a 21 permit holder fails to comply with the conditions and terms of the permit issued under 22 AS 16.12.010 within a reasonable period after notification by the department of 23 noncompliance, the permit may be suspended or revoked, in the discretion of the 24 commissioner. 25 (b) If the commissioner finds that the operation of the permitted activity is not 26 in the best interests of the public, the commissioner may alter the conditions of the 27 permit to mitigate the adverse effects of the operation or, if the adverse effects are 28 irreversible and cannot be mitigated sufficiently, initiate a termination of the operation 29 under the permit over a reasonable period under the circumstances, not to exceed four 30 years. During the period that the operation is being terminated, the permit holder may 31 harvest shellfish under the terms of the permit but may not release additional shellfish.
01 Sec. 16.12.050. Regulations relating to released shellfish. (a) Shellfish 02 released into the natural water of the state by a permit holder under this chapter are 03 available to the people for common use and are subject to regulation under applicable 04 law in the same way as shellfish occurring in their natural state except when they are 05 in a special location designated by the department for harvest by a permit holder. 06 (b) The Board of Fisheries may, after the issuance of a permit by the 07 commissioner, amend by regulation adopted in accordance with AS 44.62 08 (Administrative Procedure Act), the terms of the permit relating to the source of brood 09 stock, the harvest of shellfish by permit holders, and the specific locations designated 10 by the department for harvest. The Board of Fisheries may not adopt a regulation or 11 take an action regarding the issuance or denial of a permit required in this chapter. 12 Sec. 16.12.060. Department assistance and cooperation. (a) Before and after 13 permit issuance under AS 16.12.010, the department shall make reasonable efforts, 14 within the limits of time and resources, to advise and assist applicants or permit 15 holders, as appropriate, as to shellfish enhancement projects, including the planning, 16 construction, and operation of facilities. 17 (b) Nothing in this section exempts an applicant or permit holder from 18 compliance with this chapter or from compliance with the regulations or restrictions 19 adopted under this chapter. 20 Sec. 16.12.070. Brood stock sources. (a) The department shall approve the 21 source and number of shellfish taken for use as brood stock under AS 16.12.010 - 22 16.12.199. 23 (b) Where feasible, a permit holder shall first take shellfish from stocks native 24 to the area in which the shellfish will be released. 25 Sec. 16.12.080. Sale of shellfish; use of proceeds; quality and price. (a) A 26 permit holder that sells shellfish harvested from the natural water of the state, or sells 27 shellfish to another permit holder under this chapter, shall use the funds only for 28 reasonable operating costs, including debt retirement, expanding its facilities, shellfish 29 enhancement projects, shellfish research, or to assist in meeting the department's costs 30 of managing the affected fisheries for the area in which the shellfish release is located. 31 (b) A permit holder shall ensure that shellfish harvested and sold for human
01 consumption are of comparable quality to shellfish harvested by commercial fisheries 02 in the area and are sold at prices commensurate with the current market. 03 Sec. 16.12.090. Cost recovery fisheries. (a) A permit holder may harvest 04 shellfish for a shellfish enhancement project in 05 (1) a special harvest area through agents or employees of or persons 06 under contract with the permit holder as provided under a permit from the department 07 or regulations of the Board of Fisheries; or 08 (2) a special harvest area through the common property fishery under 09 this section. 10 (b) A permit holder may, by a majority vote of the membership of the permit 11 holder's board, elect to harvest shellfish in a special harvest area established for an 12 enhancement project through the common property fishery. At the request of the 13 permit holder and if the commissioner determines that there are no allocative issues 14 involved, and after reasonable consultation with affected commercial fishermen, the 15 commissioner may adopt regulations governing the harvest of shellfish in a special 16 harvest area through a common property fishery. The regulations must specify the 17 terms, conditions, and rules under which the common property fishery in the special 18 harvest area shall be conducted, including requirements for holding inspections and 19 reporting of harvests and sales of shellfish taken in the special harvest area. Following 20 adoption of regulations by the department, before January 15 of each year, the permit 21 holder's board of directors, by a majority vote of the board's membership, may 22 determine whether the permit holder will operate under the regulations adopted under 23 this subsection during the current calendar year and shall notify the department if the 24 permit holder intends to operate under the regulations adopted under this subsection. 25 The Board of Fisheries may adopt regulations under AS 16.05.251 regarding a 26 fisheries management plan governing operations under this subsection in a special 27 harvest area, including allocation plans. Participation in the fishery must be open to all 28 interim-use permit and entry permit holders who hold permits to operate a type of gear 29 that may be used in the fishing district in which the special harvest area is located if 30 that type of gear is authorized by regulation to be used in the special harvest area. An 31 interim-use permit holder or an entry permit holder who takes shellfish in a common
01 property fishery in a special harvest area may sell the shellfish to a fish buyer or 02 processor who is licensed to do business in the state. 03 (c) As a condition of participation in a common property shellfish fishery in a 04 special harvest area under this section, a fisherman who participates in the fishery is 05 subject to the payment of the assessment levied under (d) of this section on the 06 projected value of the shellfish or on the pounds of shellfish harvested. The 07 assessment is levied on the shellfish that the fisherman takes in the special harvest area 08 and sells to a licensed buyer. The buyer of the shellfish must be licensed under 09 AS 43.75, and the buyer shall collect the assessment on shellfish taken in a special 10 harvest area at the time of purchase and remit the assessment to the Department of 11 Revenue in accordance with regulations adopted by the Department of Revenue. 12 (d) The Department of Revenue may, by regulation, annually, by March 1 of 13 each year, set the assessment levied on shellfish taken in a special harvest area in 14 consultation with the Department of Commerce, Community, and Economic 15 Development, the permit holder, and representatives of affected commercial 16 fishermen. The assessment shall provide sufficient revenue to cover debt service, 17 reasonable operating expenses, reasonable maintenance expenses, and development or 18 maintenance of a reserve fund up to 100 percent of annual operating costs of the 19 permit holder's shellfish enhancement project. In setting the assessment, the 20 department shall consider the estimated harvest of shellfish in the special harvest area, 21 the projected price to be paid for shellfish in the region, the amount of the existing 22 reserve held by the permit holder, and the amount by which the assessment collected 23 in previous years exceeded or fell short of the amount anticipated to be collected. The 24 assessment may not exceed 50 percent of the value of the shellfish. The department 25 may levy the assessment as a percentage of the projected value of the shellfish 26 harvested in the special harvest area or as a flat rate on each pound of shellfish 27 harvested in the area, to the nearest whole cent. 28 (e) The Department of Revenue shall deposit the assessments collected under 29 this section in the general fund. The legislature may appropriate the funds collected 30 under this section to the permit holder who is carrying out an enhancement project, 31 including the operation of a facility, in the special harvest area in which the
01 assessment was levied. A permit holder shall use funds appropriated under this 02 subsection for the purposes set out under AS 16.12.080(a). The legislature may also 03 appropriate funds collected under this section to the Department of Revenue for costs 04 incurred by the department under this section. 05 (f) A person who violates a regulation adopted under (b) of this section is 06 guilty of a violation under AS 16.05.722 or a misdemeanor under AS 16.05.723. A 07 person who violates a regulation adopted by the Department of Revenue under (c) of 08 this section is guilty of a class A misdemeanor. 09 (g) In this section, 10 (1) "special harvest area" means an area designated by the 11 commissioner or the Board of Fisheries where shellfish may be harvested by permit 12 holders under this chapter and by the common property fishery; 13 (2) "value" has the meaning given in AS 43.75.290. 14 Sec. 16.12.100. Inspection by the department. (a) A permit holder shall 15 allow the department to inspect the permit holder's enhancement project facility at any 16 time the enhancement project facility is in operation. The department shall conduct the 17 inspection in a reasonable manner. 18 (b) The department shall bear the cost of an inspection performed under this 19 section. 20 Sec. 16.12.110. Annual report. A person who holds a permit under this 21 chapter shall submit an annual report not later than December 15 to the department. 22 The report must be made on a form prescribed by the department and contain 23 information pertaining to 24 (1) species; 25 (2) the brood stock source; 26 (3) the number, age, gender, and size of spawners; 27 (4) the number of eggs collected and juveniles produced; and 28 (5) the number, age, gender, and size of harvested shellfish attributable 29 to releases by the permit holder. 30 Sec. 16.12.199. Definitions. In this chapter, 31 (1) "enhancement project" means a project to
01 (A) augment the yield and harvest of shellfish above naturally 02 occurring levels by natural, artificial, or semiartificial production systems; 03 (B) rehabilitate a shellfish stock by restoring it to its natural 04 levels of productivity; or 05 (C) increase the area of productive natural shellfish habitat; 06 (2) "facility" means a hatchery or other facility for a shellfish 07 enhancement project; 08 (3) "genetically modified shellfish" means shellfish whose genetic 09 structure has been altered at the molecular level by recombinant DNA and RNA 10 techniques, cell fusion, gene deletion or doubling, introduction of exogenous genetic 11 material, alteration of the position of a gene, or other similar procedure using artificial 12 processes; 13 (4) "hatchery" means a facility for the artificial propagation of stock, 14 including rearing of shellfish and release of shellfish into the natural water of the state; 15 (5) "shellfish" means a species of crustacean, mollusk, or other 16 invertebrate, in any stage of its life cycle, that is indigenous to state water. 17 * Sec. 5. AS 16.43.400(a) is amended to read: 18 (a) In addition to entry permits, interim-use permits, and educational permits, 19 the commission may issue special harvest area entry permits to 20 (1) holders of private, nonprofit hatchery permits issued by the 21 Department of Fish and Game under AS 16.10.400 - 16.10.475 for salmon; or 22 (2) nonprofit organizations holding a permit under AS 16.12 for a 23 shellfish enhancement project. 24 * Sec. 6. AS 16.43.430 is amended to read: 25 Sec. 16.43.430. Authorized gear. For the purposes of harvesting salmon or 26 shellfish, a special harvest area entry permit holder may employ any fishing gear 27 designated as legal gear in the applicable special harvest area by the Board of 28 Fisheries. 29 * Sec. 7. AS 17.20.049(b)(1) is amended to read: 30 (1) "farmed fish" means fish that is propagated, farmed, or cultivated 31 in a facility that grows, farms, or cultivates the fish in captivity or under positive
01 control but that is not a salmon hatchery that is owned by the state or that holds a 02 salmon hatchery permit under AS 16.10.400 or a shellfish facility that is permitted 03 under AS 16.12.010; in this paragraph, "positive control" has the meaning given in 04 AS 16.40.199; 05 * Sec. 8. AS 37.05.146(c) is amended by adding new paragraphs to read: 06 (80) fees collected by the Department of Fish and Game under 07 AS 16.10.400; 08 (81) fees collected by the Department of Fish and Game under 09 AS 16.12.010. 10 * Sec. 9. AS 43.20.012(a) is amended to read: 11 (a) The tax imposed by this chapter does not 12 (1) apply to an individual; 13 (2) apply to a fiduciary; 14 (3) for a tax year beginning after December 31, 2012, apply to an 15 Alaska corporation that is a qualified small business and that meets the active business 16 requirement in 26 U.S.C. 1202(e) as that subsection read on January 1, 2012; [OR] 17 (4) for a tax year beginning after June 30, 2007, apply to the income 18 received by a regional association qualified under AS 16.10.380 or nonprofit 19 corporation holding a hatchery permit under AS 16.10.400 from the sale of salmon or 20 salmon eggs under AS 16.10.450 or from a cost recovery fishery under AS 16.10.455; 21 or 22 (5) apply to income received by a nonprofit corporation holding a 23 permit under AS 16.12.010 from the sale of shellfish under AS 16.12.080 or from 24 a cost recovery fishery under AS 16.12.090. 25 * Sec. 10. AS 43.20.012(a), as repealed and reenacted by sec. 2, ch. 55, SLA 2013, is 26 amended to read 27 (a) The tax imposed by this chapter does not apply to 28 (1) an individual; 29 (2) a fiduciary; [OR] 30 (3) the income received by a regional association qualified under 31 AS 16.10.380 or nonprofit corporation holding a hatchery permit under AS 16.10.400
01 from the sale of salmon or salmon eggs under AS 16.10.450 or from a cost recovery 02 fishery under AS 16.10.455; or 03 (4) the income received by a nonprofit corporation holding a 04 permit under AS 16.12.010 from the sale of shellfish under AS 16.12.080 or from 05 a cost recovery fishery under AS 16.12.090. 06 * Sec. 11. AS 43.76.390 is amended to read: 07 Sec. 43.76.390. Exemption. AS 43.76.350 - 43.76.399 do not apply to salmon 08 or shellfish harvested under a special harvest area entry permit issued under 09 AS 16.43.400. 10 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 APPLICABILITY. AS 16.10.400(b), as amended by sec. 2 of this Act, applies to 13 salmon hatchery permits applied for on or after the effective date of sec. 2 of this Act. 14 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 TRANSITION: REGULATIONS. The Department of Fish and Game may adopt 17 regulations necessary to implement this Act. The regulations take effect under AS 44.62 18 (Administrative Procedure Act), but not before the effective date of the law implemented by 19 the regulation. 20 * Sec. 14. Section 13 of this Act takes effect immediately under AS 01.10.070(c). 21 * Sec. 15. Section 10 of this Act takes effect on the effective date of sec. 2, ch. 55, SLA 22 2013.