Legislature(2001 - 2002)
04/09/2001 01:15 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 216-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS CO-CHAIR SCALZI announced the next order of business would be HOUSE BILL NO. 216, "An Act relating to the emergency order authority of the commissioner of fish and game and to meetings of the Board of Fisheries." [The bill was sponsored by the House Resources Standing Committee.] Number 2113 REPRESENTATIVE McGUIRE made a motion to adopt the proposed committee substitute (CS), Version L [22-LS0774\L, Utermohle, 4/6/01], as a work draft. [No objection was stated.] CO-CHAIR SCALZI explained the changes to subsection (d) [page 3 of Version L]. He reminded members that at the previous hearing, concern was expressed by the Alaska Department of Fish and Game (ADF&G) that the language in Section 2, subsection (d) [of the original bill], which is the "meat" of the bill, was too broad; the commissioner believed this language would put undue pressure on him to make changes and regulatory amendments regarding the Board of Fisheries that he felt would compromise that board's authority. CO-CHAIR SCALZI reported that the language [in Version L] was run by the department, and that work was done with the department's legal counsel, Lance Nelson. Language was arrived at that seemed palatable to all: the new language in subsection (d). He asked Mr. Nelson to comment. Number 2031 LANCE NELSON, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, testified via teleconference. He pointed out that [subsection (d)] doesn't address biological emergency situations. Rather, it is targeted to address a situation in which there is a possible lost harvest. Therefore, Mr. Nelson said he doesn't believe the language changes the current law, under case law, regarding biological emergency situations. MR. NELSON told members he believes, however, that it codifies current case law, as expressed in the Peninsula Marketing Association [v. Rosier] case that the [Alaska] Supreme Court decided in 1995, although he believes it makes it even more specific regarding exactly what the commissioner needs to do, based on new information. Number 1973 CO-CHAIR SCALZI responded that the intent is to allow the commissioner, in extreme cases, to be able to open a fishery previously closed by the board under a regulatory action or management plan; if all criteria in subsection (d) have been met, then the commissioner may be able to open up a fishery. Certainly, under a biological emergency, the commissioner now has authority to close a fishery; that was never a question, but there was a question regarding the ability to open a fishery. CO-CHAIR SCALZI further explained that the intent is to remedy a problem that occurred in Cook Inlet and "potentially Area M or any other area that has ... subsequent closures to it right now, that under the management plan cannot be opened." He asked whether there were questions or comments regarding subsection (d); none were offered. Number 1895 DOUG MECUM, Director, Division of Commercial Fisheries, Alaska Department of Fish and Game, came forward to testify, noting that also present were Gordy Williams, ADF&G's legislative liaison; and Diana Cote, executive director of the Board of Fisheries. MR. MECUM advised members that he had nothing to add regarding subsection (d), except to say [Co-Chair Scalzi] had characterized very well their discussions on the ability to come to some accommodation on the language. He also concurred with the Department of Law that it clarifies existing responsibilities and authorities between the board and the commissioner. Mr. Mecum added, "We don't believe that it does upset the balance of power between the board and the department that's outlined in statute and in law. We believe that the earlier version did, and we expressed that concern to you." CO-CHAIR SCALZI voiced his appreciation to the [ADF&G] and the Department of Law for working on this. He informed listeners that [Version L] had been faxed to Dan Coffey, chairman of the Board of Fisheries, who had indicated he would send Co-Chair Scalzi written comments, both his own and perhaps those of other board members. Number 1782 CO-CHAIR SCALZI turned attention to Section 3, regarding the board's "agenda-change request language." He noted that at the last hearing, the department indicated no problem with that language. However, Mr. Nelson had suggested an amendment to it. [Amendment 1] read: This subsection does not restrict the board's authority to schedule and consider regulatory changes as reasonably necessary for coordination with federal fishery agencies, programs, and laws. CO-CHAIR SCALZI explained that [Amendment 1] would clarify that if the board needs an agenda change regarding the North Pacific [Fishery] Management Council (NPFMC) or some other federal entity, it may change its agenda to do so. He said it isn't necessary, but if the Department of Law feels comfortable with it, he has no objection. In response to a question from Representative Green, he specified that Amendment 1 would be added following the last paragraph of Section 3 [page 3 of Version L]. Number 1700 REPRESENTATIVE McGUIRE made a motion to adopt the foregoing as Amendment 1. CO-CHAIR SCALZI asked Mr. Nelson whether Amendment 1 satisfies the department as far as any "future ties on their agenda" regarding federal and state meetings. MR. NELSON answered that he believes it does. MR. MECUM expressed support for Amendment 1. Number 1610 CO-CHAIR SCALZI asked whether there was any objection to Amendment 1. There being no objection, Amendment 1 was adopted. CO-CHAIR SCALZI turned the committee's attention to the main language in Section 3. Number 1592 MR. MECUM noted that the commissioner, in previous testimony, said he didn't have any particular problems with that part of the bill. Mr. Mecum told members: We stated our preference that if the legislature was going to adopt legislation that sort of directed how the ... Board of Fisheries set their agendas and developed standards for that, that those standards and that direction be, most appropriately, directed to the Board of [Fisheries] themselves. This particular version does set up a little bit of a tension between the department and the Board of Fisheries on issues related to conservation issues, in terms of changing their cycle. And I think you can appreciate the fact that whether or not we agree with what the board has done in the past, in terms of taking things up out of cycle or not, the responsibility, the blame, the credit, whatever, has rested with the board. And after all, this is the board setting their own agenda. We also did say that our preference would be that the board would listen to the department's advice, would defer to the scientific judgment of the staff - their staff - on issues of conservation. But under the current laws, under their current regulations, they don't have to do that. This would, in fact, require a concurrence by the commissioner, by the department, on issues of conservation, prior to the board being able to take up an issue out of cycle, and where it would apply ... is, essentially, in the instances of the public bringing forward an agenda-change request. It wouldn't restrict, obviously, the department's ability to bring one forward; it wouldn't dictate that the board take it up; it wouldn't stop the board from developing their own agenda-change requests, nor would it stop the board from changing their schedule, in any way, to deal with any issue that they thought was appropriate. So it's very limited in ... scope. But as you can see - and I think you can appreciate it - it does set up a little bit of a different playing field. CO-CHAIR SCALZI said that certainly is the intent. Number 1428 JERRY McCUNE, United Fishermen of Alaska, came forward, stating support for Version L. Regarding the agenda-change request, he told members it addresses only "the public's section" regarding an agenda-change request. Mr. McCune explained, "All we're asking for is a little bit of proof when you bring an allegation [regarding] a conservation issue before the board." He said it doesn't mean the board cannot take up a conservation issue, nor that the public cannot bring that issue [before the board]. MR. McCUNE noted that the scientists in charge of most conservation issues are in the department, rather than on the board; he suggested there should be some concurrence that there is a problem, between the department and the board, in order [for the public] to bring something like that forward. Regarding subsection (d), Mr. McCune said he could think of only rare instances in which the commissioner would have to do that, such as when a fish run would be bigger than expected and, therefore, the fishery might have to be opened in order to harvest some "leftover fish." Mr. McCune added that he doesn't foresee that happening often, if ever. Number 1293 SUE ASPELUND, Executive Director, Cordova District Fishermen United, testified via teleconference in support of HB 216. She praised Section 3 as "a very important piece of work" that goes a long way towards restoring the public's confidence in the board process because it mandates that the board must rely on its scientific professionals. Number 1254 DAN WINN, Commercial Fisherman, testified via teleconference in support of HB 216. He told members he had assumed the commissioner could [open a fishery] now because [the commissioner] could, in the past, close down a fishery. Mr. Winn expressed surprise that 20 million pink salmon - about the number caught last year by seiners in Southeast Alaska - went up the rivers in the Cook Inlet drainage. In his 30 years in Cook Inlet, he had never before seen that many fish of one species. CO-CHAIR SCALZI asked whether anyone else wished to testify; there was no response. He closed the public testimony. Number 1126 CO-CHAIR MASEK asked Mr. Mecum how many emergency openings, in the course of an average fishing season, have been needed to allow people to catch more fish. She also requested clarification about the department's view of the bill. MR. MECUM replied that for emergency orders issued [by ADF&G], there have been 500 to 1,000 each season; it doesn't vary much from year to year. He restated that [the department] believes the bill, in its current construction, is essentially a clarification of existing responsibilities and authority that the commissioner has. [The department] had thought the previous [version] went too far, upsetting the balance of power between the department and the Board of Fisheries in that it would also [ADF&G] to supersede regulations that might deal with allocation issues. Mr. Mecum explained, "We testified that we didn't want to have any part of that; we don't want to be the Board of [Fisheries]." He specified that his comments applied to Sections 1 and 2, not Section 3. Number 0796 CO-CHAIR MASEK made a motion to adopt Amendment 2, which read [original punctuation provided]: Page 3 Line 3: To add after under this section to close a fishery, or allow or extend a fishing season. Renumber accordingly Number 0732 JENNIFER YUHAS, Staff to Representative Beverly Masek, Alaska State Legislature, explained that Amendment 2 came about because of an understanding that the commissioner is already allowed to open or close a season, and that the bill doesn't speak to both of those duties. CO-CHAIR SCALZI responded that it was clear that the commissioner could close a fishery, but the question was whether the commissioner could open one. He deferred to ADF&G regarding whether Amendment 2 adds any significant change to the concept of the bill. Number 0674 MR. MECUM restated his belief that [Version L] already addresses the issue. He referred to page 3, subsection (d), and pointed out that it says "notwithstanding (a) of this section". Furthermore, subsection (a) is [AS] 16.05.060, the existing authority of the commissioner, which basically says "nothing in this section restricts the commissioner's ability to summarily open or close seasons for the purposes that are set out in statute." He cautioned that it might confuse the issue. MR. NELSON also expressed concern that Amendment 2 might present an issue with the language a couple of lines down [Section 2, subsection (d), page 3, lines 5-7], which read, "The commissioner may exercise authority under this subsection only upon a determination that the basis for the board's regulatory provisions can be adequately addressed." MR. NELSON explained that the language was crafted to address a situation in which there is a conservative board regulation and a more liberal "EEO" that is being contemplated for opening of a fishery, despite a restrictive board regulation. He cautioned that changing that language to address closures as well as openings may place extra obstacles when there are emergency conservation situations. CO-CHAIR SCALZI asked whether there could be a negative effect from closing a fishery. MR. NELSON said he wasn't absolutely sure, but that he worried about it. The language was crafted to address the possibility of a lost harvest. He suggested perhaps further review would be required. Number 0283 CO-CHAIR SCALZI stated his intent to move the bill forward and proposed that the research could be done in the interim. He then specified that he objected to Amendment 2 at this time. REPRESENTATIVE McGUIRE asked for clarification about why there should be a different standard for a closure versus an opening. MR. MECUM restated his belief that Version L deals with the issue of closures, and doesn't change that in any way. The Department of Law is saying here that it may confuse things, he pointed out, because in order to enact a closure, a determination must be made relative to what the board has already done. By contrast, the existing statute in no way limits the commissioner's power to close a fishery for conservation purposes. Mr. Mecum acknowledged that [Amendment 2] is somewhat confusing in that regard. MR. MECUM read from page 3, line 3, as it would read with Amendment 2: "under this section to close a fishery, or to allow or extend a fishing season". He commented that the whole sentence is aimed, again, at the issue of opportunity, so that an allowable harvest would not be forgone. It does seem a little bit out of place there, he remarked. He reiterated his belief that [Version L] addresses the concern, if the concern is that the commissioner's power to close a fishery is in no way encumbered. TAPE 01-32, SIDE A Number 0001 MS. YUHAS told the committee Co-Chair Masek's intent, as sponsor of Amendment 2, was to match the original language, and that Amendment 2 in no way mandates closures by the commissioner. In response to a question from Co-Chair Scalzi regarding whether Ms. Yuhas saw the problem with the way the rest of the bill is constructed, she said she didn't see the problem and believed it matched the existing language. Number 0189 MR. NELSON, in response to Representative Kerttula, explained that the language in Section 2 provides a safeguard, to a certain extent, by requiring a rationale, as explained by the commissioner, that the commissioner has reviewed the board's more conservative restrictions and finds that those "are addressed by the current situation" regarding the opening that [the commissioner] is going to issue or a season that [he or she] is going to extend. It puts a premium on conservation. The commissioner would need to make a special determination that conservation will not be endangered. MR. NELSON explained that it may be a little more restrictive than a "DMA" decision, which won't be based on the facts but will only address a situation in which the commissioner wants to be more conservative than the board. This, by contrast, talks about a situation in which a commissioner wants to be more liberal because of receiving new information that an opportunity will be lost otherwise. Amendment 2, to his belief, would add an extra requirement on the commissioner, even when the commissioner is acting more conservatively, rather than just when the commissioner is going to act more liberally in the face of a conservative board or regulation. If that is the intent, that is fine, he said, and is the legislature's prerogative. But it is a change that would make it narrower. Number 0499 CO-CHAIR SCALZI explained his objection: From his understanding of [Mr. Nelson's] testimony, [Amendment 2] would make it more difficult to close a fishery than under current law; if there were a challenge, it would have to be done "upon a determination that the basis for the board's regulatory provisions can be adequately addressed" [lines 5-7]. CO-CHAIR SCALZI said if the department couldn't adequately address the provisions but there was a biological need to close a fishery, he would always opt to be more conservative regarding the resource and close the fishery, rather than keeping it open. Furthermore, after listening to legal counsel, he himself believed this would do just the opposite of what the intent is. Number 0596 REPRESENTATIVE STEVENS spoke against Amendment 2, saying he couldn't see what would be lost by leaving it out. Number 0625 REPRESENTATIVE GREEN asked Co-Chair Masek whether, having heard from legal counsel that the amendment would make it more difficult, she still wanted to include it. CO-CHAIR MASEK reiterated her staff's comment that Amendment 2 doesn't mandate a closure and matches existing language. She also stated her own belief that it doesn't make it harder to close a fishery. In further response to Representative Green, she indicated she was contesting the attorney's view. A roll call vote was taken. Representative Masek voted for Amendment 2. Representatives Green, McGuire, Stevens, Kapsner, Kerttula, and Scalzi voted against it. [Representatives Fate and Chenault were not present.] Therefore, Amendment 2 failed by a vote of 1-6. REPRESENTATIVE McGUIRE remarked during the vote that she wanted to study Amendment 2 in the interim "to see if the difference is really what they say." Number 0820 REPRESENTATIVE KERTTULA made a motion to move CSHB 216 [version 22-LS0774\L, Utermohle, 4/6/01, as amended] out of committee [with individual recommendations and the attached zero fiscal note]. CO-CHAIR MASEK objected. A roll call vote was taken. Representatives Green, McGuire, Stevens, Kapsner, Kerttula, and Scalzi voted to move the bill out of committee. Representative Masek voted against it. [Representatives Fate and Chenault were not present.] Therefore, CSHB 216(RES) was moved out of the House Resources Standing Committee by a vote of 6-1.
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