Legislature(2001 - 2002)
04/16/2002 03:40 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 216-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS
CHAIRMAN THERRIAULT informed committee members he had prepared a
committee substitute (CS) for HB 216. On page 2, line 19, new
language was inserted into the intent section. His concern was
that there are a number of statements under the findings section
that use limiting language such as "rare instances" but the
similar limiting language did not present itself in the first
intent section clause that spoke to that section of the bill. He
asked the drafters to insert language so the findings section
flowed to the intent. His concern was that if the courts were
looking at that section of statutes, they would look to the
Legislature's intent. He didn't know that they would look at the
findings and determine the stated finding was clearly legislative
intent. This is of particular concern when an intent section
doesn't have the same limiting language.
He asked Representative Scalzi whether he had any comments on the
CS.
REPRESENTATIVE SCALZI said he was trying to understand the
comfort level, but he had no problem with the added language, "in
rare circumstances where immediate action is necessary," on page
2, line 19.
CHAIRMAN THERRIAULT said his suggestion, as Chairman, was that if
they couldn't make the clarification, he would have preferred to
be silent on the intent and findings.
He asked Senator Halford whether he intended to make a motion to
adopt his proposed amendment.
SENATOR HALFORD said he didn't intend to move the entire
amendment and he needed a few moments before he could proceed.
CHAIRMAN THERRIAULT called a brief at ease at 4:55 p.m. and
gaveled the meeting back to order at 4:57 p.m.
SENATOR HALFORD referred members to page 3, line 20 through 22 of
the 4/12/02 CS (Version P). He made a motion to delete, "if the
commissioner concurs in the determination of the board that a
fishery conservation issue exists and that the issue cannot be
resolved under current regulations,". The language substantially
changes the relationship of the board and the commissioner to the
detriment of the board. Other than the day-to-day management, the
board should set the policy, not the department. This
commissioner of this department is selected from a roster
provided by the board. The board transitions through different
governors and has more continuity than the commissioners.
CHAIRMAN THERRIAULT asked Representative Scalzi for verification
that this section came from regulation and the language that
would be deleted was the language he was trying to add into
statute.
REPRESENTATIVE SCALZI replied that was correct. Senator Halford's
proposed change would keep the language that is currently in
regulation. It would be a moot point to the bill for that
section. The intent is to get the commissioner in concurrence
with the board and with the conservation issue that does exist.
He agreed that the governor appoints the commission based on the
applicants presented by the board. However, in the legislative
intent, the commissioner is the biological manager and that is
the argument of the bill. There must not only be consultation,
but also concurrence that a biological issue or concern does
exist. He said the commission is more than just a figurehead, he
is the steward of the resource and that is why the language is
written that way.
CHAIRMAN THERRIAULT said Senator Halford moved proposed amendment
1. He asked whether there was objection from committee.
SENATOR DAVIS asked the Chairman whether she missed something.
She wondered why they weren't addressing the other parts of the
proposed amendment.
SENATOR HALFORD said he didn't offer the entire amendment as
written. He said he just offered the change as outlined above,
but the sponsor said his amendment deletes Section 3 from the
bill.
REPRESENTATIVE SCALZI agreed. The purpose of the bill is the
sentence Senator Halford wanted to remove by amendment. It is
currently the board's regulatory language except for the addition
that the commissioner concurs in the determination of the board.
He wants the regulatory language and also the concurrence of the
commissioner that a conservation issue exists.
SENATOR STEVENS asked the sponsor for further explanation.
REPRESENTATIVE SCALZI replied the board could amend their own
agenda, that's not an issue. An agenda change request, which is
what the bill speaks to, is to add something to the agenda in an
out of cycle meeting. If they were to take up an issue out of
cycle, they would do it for one of three reasons (1) address an
unforeseen consequence (2) correct an error in regulation (3) a
conservation issue or purpose. So they don't take it out of cycle
as an abuse to the system, scientific data should be presented to
show that a conservation issue does exist. You get that
concurrence with the commissioner of fish and game.
CHAIRMAN THERRIAULT added you would get that concurrence through
the area manager.
REPRESENTATIVE SCALZI said the commissioner would have to go to
the biologists to get the correct data.
SENATOR STEVENS asked if that wasn't the same pool of resource
that the board of fish is supposed to draw their scientific
knowledge from so in reality it would all be the same scientific
evidence. Both the commissioner and the board would be using the
same pool to concur.
REPRESENTATIVE SCALZI said that is correct. The board has the
same pool. They have the ability to listen to their biological
managers.
SENATOR STEVENS said that by passing this law they would be
forcing the board to use the scientific information that is there
because if they don't the commissioner will.
REPRESENTATIVE SCALZI said they couldn't choose to ignore it if
this legislation is passed.
SENATOR HALFORD said the issue is the basic philosophy of whether
this department is run at the will of the board or the board is
run at the will of the department. This is their own internal
agenda. The catch all that they use to go back to another issue
is the one that is being amended to require the concurrence of
the administration. He believes this substantially reduces the
power of the board in terms of what it is going to consider. If
they wanted to do that they would probably have the legislative
liaison in charge of the executive branch in charge of the Rules
Committee.
CHAIRMAN THERRIAULT said he has heard that the workload of the
board is heavy and in part that is because of all the out of area
and out of turn issues that are put on the agenda.
SENATOR HALFORD replied the board's attorney said he didn't think
the board would support the legislation. It's a matter of balance
shift. He believes the administration has a great deal of power
in the process and this would enhance the executive branch direct
power and reduce the constitutionally created authority of this
board system of management. He agreed they have lots to do, but
during his tenure the up river down river, commercial non-
commercial interests have gone back and forth on this issue
depending on whether they feel they have board or administration
support. This legislation proposes to change a basic process that
has been in existence for a long time. "I think it's balanced now
and I think this would change that balance."
SENATOR STEVENS said if the effort were for a power shift they
would be addressing the commissioner's concurrence to all three
of the components. This only goes to the one conservation issue.
The board still has the authority to amend the agenda based on an
error or unforeseen consequences of a regulation.
SENATOR HALFORD replied this is a board that frequently ends up
in court on specific issues. To correct an error you must prove
it was done in error and something in the record is wrong.
Regarding unforeseen consequences, if a minority on the board
argued that something was going to happen and then it did, it's
not an unforeseen consequence. It was expected but not the
prevailing side of the issue. This is a board that has a
continuous record of challenges on these types of issues. The
point that is proposed for amendment is challenged the most and
he thought Representative Scalzi would agree.
REPRESENTATIVE SCALZI said he did agree. Seven times in the last
ten years they have used that point in one area in particular.
They used it twice in the Copper River area and the legislative
intent is that there is stability in the board process. Recently
in the Lower Cook Inlet and Kodiak area he had sports fisherman
angry with him because they limited the Kodiak area to five King
Salmon. He told them it is an allocation issue and the board's
purview. They responded the board didn't base it on scientific
data and they were told the board didn't have to. He believes the
integrity of the board process is at stake and that's what the
public is asking for. It has nothing to do on how they manage the
issues, but if something is taken out of cycle the conservation
argument shouldn't be used without scientific verification.
CHAIRMAN THERRIAULT objected to the amendment and asked whether
there were any questions.
SENATOR DAVIS asked Representative Scalzi for verification that
he did not support the amendment.
REPRESENTATIVE SCALZI replied he did not support the amendment.
Although the Senate and the House have cut the budget of the
board of fish because they were taking too many meetings out of
cycle, it didn't change the behavior. This would be a more
productive and stabilizing action.
CHAIRMAN THERRIAULT asked for a roll call on amendment #1. The
amendment failed three to two with Senators Stevens, Davis and
Chairman Therriault voting no and Senators Phillips and Halford
voting yes.
There were no other amendments offered. There was one zero fiscal
note. He asked for the will of the committee.
SENATOR STEVENS made a motion to pass \P version SCS CSHB
216(STA) from committee with attached fiscal note and individual
recommendations. There being no objection, it was so ordered.
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