Legislature(1995 - 1996)

01/24/1995 05:15 PM House FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              HOUSE SPECIAL COMMITTEE ON FISHERIES                             
                        January 24, 1995                                       
                           5:15 p.m.                                           
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Alan Austerman, Chairman                                       
 Representative Carl Moses, Vice Chair                                         
 Representative Gary Davis                                                     
 Representative Scott Ogan                                                     
 Representative Kim Elton                                                      
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 None                                                                          
                                                                               
 OTHER LEGISLATORS PRESENT                                                     
                                                                               
 Representative Vic Kohring                                                    
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 Limited Entry Commission Overview and Current Issues                          
                                                                               
 NMFS Update and Overview on IFQs                                              
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 FRANK HOMAN, COMMISSIONER                                                     
 Commercial Fisheries Entry Commission                                         
 8800 Glacier Highway #109                                                     
 Juneau, AK  99801                                                             
 Phone: 789-6160                                                               
 POSITION STATEMENT:  Presented overview of commission                         
                                                                               
 BRUCE TWOMLEY, COMMISSIONER                                                   
 Commercial Fisheries Entry Commission                                         
 8800 Glacier Highway #109                                                     
 Juneau, AK  99801                                                             
 Phone: 789-6160                                                               
 POSITION STATEMENT:  Assisted with the overview                               
                                                                               
 JESSICA A. GHARRETT, OPERATIONS MANAGER                                       
 Restricted Access Management Division                                         
 National Marine Fisheries Service                                             
 709 W. 9th, Suite 413                                                         
 P.O. Box 21668                                                                
 Juneau, AK  99802                                                             
 Phone: 586-7344                                                               
 POSITION STATEMENT:  Provided the IFQ presentation                            
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-1, SIDE A                                                             
 Number 000                                                                    
                                                                               
 CHAIRMAN ALAN AUSTERMAN called the meeting to order at 5:15 p.m.              
 He noted for the record Representatives Ogan, Elton and Davis were            
 present and noted for the record a quorum was present.                        
                                                                               
 Number 027                                                                    
                                                                               
 CHAIRMAN AUSTERMAN began with introductions and said, "This                   
 committee under my direction will be heading down the line, trying            
 to hold a neutral ground when it comes to sport fish and commercial           
 fish, and hopefully we will go along the basis that the resource is           
 the number one issue.  Its protection and enhancement is our goal."           
                                                                               
 Number 058                                                                    
                                                                               
 REPRESENTATIVE CARL MOSES joined the committee at 5:08 p.m.                   
                                                                               
 REPRESENTATIVE GARY DAVIS described the district he represents as             
 having both commercial and sports interests.                                  
                                                                               
 REPRESENTATIVE KIM ELTON described his two year commercial fishing            
 background and his recent job experience as the Executive Director            
 of the Alaska Seafood Marketing Institute and said, "I have a very            
 strong interest in the commercial fisheries industry and what we              
 need to do to keep it as one of our major economic machines in the            
 state of Alaska."                                                             
                                                                               
 REPRESENTATIVE SCOTT OGAN said to the chairman, "I think we share             
 the common goal of managing fisheries on a resource base... One of            
 the issues in my district is the decline of the king salmon                   
 fisheries in the Susitna River drainage.  The Deshka River which              
 used to be the largest producer of king salmon, is off limits to              
 sport fishing entirely...  If we lose the resource, then everybody            
 loses:  Sport, commercial and tourism combined."                              
                                                                               
 REPRESENTATIVE CARL MOSES introduced himself as the representative            
 from District 40, "where over 50 percent of all of the commercial             
 fishing takes place (in Alaska)."                                             
                                                                               
 Number 155                                                                    
                                                                               
 FRANK HOMAN, COMMISSIONER, COMMERCIAL FISHERIES ENTRY COMMISSION,             
 (CFEC or Limited Entry Commission) testified describing the Limited           
 Entry Commission by saying, "It was designed to protect the                   
 resource and to protect the livelihood and the economic dependence            
 of Alaska's fishermen."  He gave committee members information                
 which included the commission's annual report that showed a list of           
 permit prices that the commission generates each month by following           
 the transactions of permit sales.  The report also showed a chart             
 of the salmon harvests, and charts and graphs that shows the                  
 organization of the commission, their budget, and what they                   
 actually do.  He said, "To begin with, the Limited Entry Commission           
 is 20 years old.  It was created actually in 1973 by legislation              
 but actually never issued the first permit until 1975.  But what              
 led to the creation of the Limited Entry Commission was the                   
 disastrous fishing of the 1960s.  Actually starting about the                 
 1930s.  But at the same time, the fishing effort and the numbers of           
 fishermen were going up each year.  In fact, in Bristol Bay between           
 1960 and 1970, the effort doubled and throughout the state it                 
 increased by thousands between 1960 and 1980.  What this did was              
 not only to impact the resource significantly, but the average                
 individual fisherman was also not able to make an economic living             
 because of the competition and the reduced resource."  Commissioner           
 Homan discussed a chart the committee members had before them.  "In           
 1975 Limited Entry started issuing permanent permits and I don't              
 want to suggest that we had very much to do with this, but we were            
 at least a factor.  Since that time the resource has particularly             
 improved.  That's due to a lot of reasons; management being one of            
 the significant reasons.  Other reasons were natural causes and               
 hatchery production around the state.  A significant part was that            
 the numbers were limited to those that had been in the fishery at             
 the time of limitation."                                                      
                                                                               
 COMMISSIONER HOMAN continued, "In the 60s there were several                  
 attempts at limited entry program but none of them survived court             
 rulings because they tended to create a closed class of fishermen             
 where there was no ability for anyone to enter into it, the permits           
 were not transferable and didn't have a value in some of the                  
 schemes, and, to a large part it excluded nonresidents which the              
 courts didn't allow.  So, through a whole series of court cases and           
 Board of Fishery attempts and legislation, in 1971, the Alaska                
 courts ruled that limited entry scheme that they had at that time             
 was unconstitutional and violated the Alaska Constitution.  One was           
 in Article 8 of Section 3, the Common Use Clause, which says in one           
 sentence, `Whenever occurring in their natural state, fish                    
 wildlife, and waters are reserved to the people for common use.'              
 Then in Article 8 of Section 15 there was a no exclusive right of             
 fishery, which at the time said `No exclusive right of special                
 privilege of fishery shall be created or authorized in the natural            
 waters of the state.'  It was hard to get through those                       
 constitutional restrictions and the court said that, and they said            
 it would take a constitutional amendment by the people to allow the           
 limited scheme to work.  An initiative was placed on the ballot in            
 1972 which won with overwhelming support from the public.  An                 
 addition was made to Article 8, Section 15, on the no exclusive               
 right and I'll just quickly read that so you can see where the                
 focus was.  `This section does not restrict the power of the state            
 to limit entry into any fishery for the purpose of resource                   
 conservation, to prevent economic distress among fishermen and                
 those dependent upon them for a livelihood and to promote the                 
 efficient development of aquaculture in the state.'  That gave the            
 basis for 1973, when Governor Egan put in a limited entry bill that           
 passed the legislative session.  That created the Alaska Limited              
 Entry Commission, and as I mentioned before, our first permits were           
 issued in 1975.  But that wasn't the end of the challenges.  There            
 were still a couple of major events to occur.  One was in 1976,               
 another initiative was on the ballot that asked the public, `Shall            
 we repeal the Limited Entry section of the Constitution?'  That was           
 defeated, almost two to one, and the public again said that they              
 wanted to keep limited entry.                                                 
                                                                               
 Number 425                                                                    
                                                                               
 COMMISSIONER HOMAN then described some of the limited entry case              
 law challenges such State v. Ostrosky.  He said the Alaska Supreme          
 Court upheld limited entry as a system of protecting the resource.            
 It was appealed to the U.S. Supreme Court and they failed to take             
 up the issue which meant that it would stand the Alaska Supreme               
 Court decision.  From those legal basis, the current Limited Entry            
 program exists.  Commissioner Homan said the program's purpose is             
 similar to what is in the Constitution, which is to promote                   
 conservation and the sustained management of Alaska's fishery                 
 resource and the economic health and stability of the commercial              
 fishing industry in Alaska by regulating and controlling entry into           
 commercial fisheries.  He said to accomplish that, it created the             
 Commercial Fisheries Entry Commission as a regulatory and quasi-              
 judicial agency of the state.  It is independent, but attached to             
 the Department of Fish and Game.                                              
                                                                               
 COMMISSIONER HOMAN discussed the composition of the Limited Entry             
 Commission using a document before the committee members entitled,            
 "CFEC Overview for House Special Committee on Fisheries" dated                
 January 24, 1995, and described the organization, procedures and              
 functions of the Limited Entry Commission.  (A copy of this                   
 document can be found in Room 434 of the Capitol Building and after           
 adjournment of the second session of the Nineteenth Legislature in            
 the Legislative Reference Library.)                                           
                                                                               
 COMMISSIONER HOMAN explained the commission issues about 30,000               
 permits and 18,000 to 20,000 vessel licenses.  He said they issue             
 about 50,000 licenses each year and they derive a significant                 
 revenue of about $5 to $6 million a year.  He noted the cost of               
 doing business is about $2.6 million.                                         
                                                                               
 COMMISSIONER HOMAN pointed out that the commission has lost one               
 position per year for the last few years.  He then talked about the           
 commission's data processing capabilities referring to a database             
 of twenty years of fish tickets.                                              
                                                                               
 COMMISSIONER HOMAN pointed out that the commission's caseload is              
 very heavy because in the last 20 years, fifty new fisheries have             
 been limited.  He clarified, "The early fisheries were limited                
 because they were distressed fisheries but in the later years we              
 limit by petition and it's usually by petition from fishermen who             
 come to us and ask us to look into a limitation system for their              
 fishery.  And we do extensive research and analysis and it takes              
 some time to make that decision to limit it.  We don't limit all              
 the fisheries."                                                               
                                                                               
 COMMISSIONER HOMAN emphasized, "The perception out in the public is           
 that many nonresidents are coming into Alaska and getting permits             
 and that simply isn't the case.  There are some, of course, and               
 there always have been nonresidents in the fisheries."  He                    
 specified, "For all fisheries, in 1994, we had 29,250 active                  
 permits and those included limited and unlimited (fisheries).                 
 Residents had 80 percent of those permits, nonresidents had 20                
 percent.  If we look at just the salmon permits for 1994, we had an           
 active 12,071 permits in Alaska which 77 percent were resident and            
 23 percent were nonresident.  If we look at all limited fisheries,            
 including salmon, crab, herring and others.  The total resident               
 (count) is 78 percent and nonresident is 22 percent.  So there's a            
 very high percentage of residents in the fisheries and those                  
 permits that are owned by residents are their access to the                   
 fishery.  More than half of the permanent permits are held by rural           
 Alaskans in rural areas where that may be the only means for                  
 livelihood in a lot of small communities."                                    
                                                                               
 COMMISSIONER HOMAN continued, "Because of the free transferability            
 of permits, some of those permits are sold to nonresidents.  On the           
 other side of things, some of the nonresidents sell their permits             
 to residents.  It goes back and forth each year.  But in the 20               
 years that the Limited Entry permit system has been operational,              
 their have been only 203 permits, on a net basis, that have gone              
 from resident to nonresident from over 14,000 permits.  So it's not           
 a flood."  He pointed out that the Bristol Bay Native Association             
 and the state's Division of Investment loan program also help keep            
 fishing permits in the state.                                                 
                                                                               
 COMMISSIONER HOMAN added, "A limited entry permit is not a                    
 negotiable instrument in that it is prohibited from being lienee              
 upon or used as security in a loan.  And only two agencies are                
 allowed to loan on limited entry permits and one is the Division of           
 Investments from the state, the other is CFAB, the Commercial                 
 Fishing and Agriculture Bank.  And this was done in the early days            
 to protect the permit from falling into the hands of financial                
 institutions or processors or banks or creditors and it was done to           
 protect the livelihood of the fishermen because it allowed them               
 access to the resource and in many areas of the state, it was the             
 family's livelihood."                                                         
                                                                               
 COMMISSIONER HOMAN informed the committee about current legal                 
 challenges.  He said, "The Internal Revenue Service, we're in court           
 with now in a case called Gatter v. IRS and it's over the                   
 involuntary transfer of a limited entry permit for tax obligations.           
 In 1992, there was a case cited called Lorensen v. United States            
 and Lorensen was a permit holder and the IRS foreclosed on his                
 permit and it went to court and the federal court ruled that the              
 IRS could seize a limited entry permit to pay for taxes.  The                 
 limited entry law that was passed by the state of Alaska didn't               
 have any provisions in it for involuntary transfer.  So in 1992,              
 through legislation, there were a series of restrictions put on the           
 transfer of an involuntary foreclosure.  These restrictions were              
 put on to protect the state's interest in the limited entry permit.           
 The state created it and had some interest protecting the transfer            
 of that permit even though it was involuntary, because once it was            
 an involuntary transfer, then the IRS could sell it at an auction.            
 Most of the restrictions follow the lines of what our normal                  
 transfer restrictions are and that you have to be an individual,              
 you can't be a company and you have to be actively able to                    
 participate and a number of other things.  The significant thing              
 was:  If the permit holder could show a hardship by the loss of               
 that permit and the loss of that income to himself and his family             
 that was dependent on that family.  That in certain cases the                 
 limited entry commission could restrict the transfer even though it           
 was seized by the IRS.  To date, no permits have transferred, but             
 the IRS has the ability to seize the permit and no one's                      
 questioning that, but we have never had one brought to us for                 
 transfer, but the IRS has filed suit to the court to ask them to              
 transfer the permit immediately.  We haven't been approached by the           
 permit holder yet, so it's not quite ripe for a showdown yet but we           
 are in court this very moment with the IRS and the outcome of that            
 court case will be very significant.  It's not to say that the IRS            
 doesn't have that power, but the state also has an interest in                
 protecting the people of the state, particularly those that depend            
 on fisheries."                                                                
                                                                               
 COMMISSIONER HOMAN also described Carlson v. Commercial Fisheries            
 Entry Commission in which nonresidents have sued the state for back          
 payments of nonresident fees for limited entry permits.  He                   
 emphasized, "The stakes are very high.  It's now estimated to be              
 about $25 million, that the state could lose if it loses this                 
 case."                                                                        
                                                                               
 COMMISSIONER HOMAN concluded, "While limited entry is not the most            
 popular program in a lot of areas, it has protected a lot of                  
 Alaskans' access to the fisheries and without it, it would be easy            
 to see that the continuing rush into the fishery would have had               
 disastrous effects.  A completely open fishery with a limited                 
 resource, eventually would affect not only that resource and the              
 commercial fishermen that depend on it, but all other users of that           
 resource:  Subsistence or sport or personal use."                             
                                                                               
 REPRESENTATIVE OGAN asked for comparison to the game board issues             
 which has experienced legal problems.                                         
                                                                               
 COMMISSIONER HOMAN said, "There may be a distinction in that                  
 commercial fishermen with limited entry permits, do pay a fee for             
 that permit based on the value of that permit.  So as the permit              
 goes up and down, the annual fee does too.  In a sense, that's                
 making a contribution back to the state for the use of the                    
 resource."                                                                    
                                                                               
 REPRESENTATIVE OGAN voiced concern about the process for appeals              
 within the commission.                                                        
                                                                               
 TAPE 95-1 SIDE B                                                              
 Number 000                                                                    
                                                                               
 COMMISSIONER HOMAN described the levels of the appeal process                 
 within CFEC.                                                                  
                                                                               
 COMMISSIONER BRUCE TWOMLEY interjected, "The people who sit on the            
 Limited Entry Commission can't hold permits, can't own a piece of             
 a fishing vessel.  We're pretty much divorced from the industry and           
 that's unlike other regulatory boards, like the Board of Fish.                
 That's one distinction that helps insulate us from conflict.                  
 Another thing is the court is most immediate and our direct                   
 supervisor.  The court is looking over our shoulder every time we             
 make a decision and we know it's going to be subject to review."              
                                                                               
 REPRESENTATIVE DAVIS asked about the numbers of nonresidency and              
 residency permit holders.                                                     
                                                                               
 COMMISSIONER HOMAN reiterated the numbers he previously gave the              
 committee.                                                                    
                                                                               
 JESSICA GHARRETT, Operations Manager, Restricted Access Management            
 Division, National Marine Fisheries Service (NMFS), began her                 
 presentation on IFQs (Individual Fishing Quotas) describing the               
 Restricted Access Management Division of NMFS and added, "The                 
 program includes a number of safeguards that were designed by the             
 Council (North Pacific Fisheries Management Council) and the                  
 secretary to preserve the nature of the fishing fleet and protect             
 the coastal communities that are known to be dependent on fishing.            
 That includes the fact that quota shares are issued in vessel                 
 categories.  There are restrictions in transferring quota share,              
 restrictions on how much a person may hold, restrictions on how               
 much fish a particular vessel may land in a given year."                      
                                                                               
 MS. GHARRETT continued, "We are now in the process of completing              
 issuance of quota share.  We anticipate fishing beginning sometime            
 this spring," and then described the limitations of IFQs ownership.           
                                                                               
 MS. GHARRETT proceeded, "Our program has just withstood the first             
 court challenge by the Alliance Against IFQs.  The challenge had a            
 number of points to it and the judge ruled from the bench in favor            
 of NMFS on all counts.  That lawsuit is in appeal now."  She then             
 described other responsibilities of the division.                             
                                                                               
 MS. GHARRETT added, "The reauthorization of the Magnuson Act which            
 did not occur during the last congressional session:  Senators                
 Kerry and Stevens have introduced legislation and in there, I                 
 believe, there is a provision for fee collection for IFQs.  This              
 presumably would be some kind of a percent basis, based on value."            
                                                                               
 MS. GHARRETT then brought up that the council is considering                  
 limitation on charter fishing for halibut and said, "So restricting           
 access in various methods and ways is certainly a response in                 
 several areas to the kinds of open access problems that all                   
 fisheries are beginning to experience."                                       
                                                                               
 MS. GHARRETT concluded, "We have about 8300 individual quota share            
 permits that have been applied for.  We have already issued about             
 5400 to 5500 so we still have about 2800 hundred to go that will              
 occur in the next several weeks.  We have about 88 halibut and 53             
 sablefish applications in conflict, primarily over whether or not             
 a lease existed.  The council recognized that many of the business            
 arrangements were oral in this industry and wanted us to allow oral           
 leases to be captured."  She then talked about the approximately              
 199 applications which have been denied and indicated, "We had a              
 six month application window and a number of persons couldn't get             
 theirs in on time for one reason or another.  Of those we have had            
 15 appeals filed."                                                            
                                                                               
 Number 280                                                                    
                                                                               
 REPRESENTATIVE OGAN asked, "You spoke of a limitation on charter              
 fishing on halibut?"                                                          
                                                                               
 MS. GHARRETT replied, "Right (but) I'm not really prepared to                 
 discuss that, but the council has formed a working group which is             
 concerning itself with the question of whether or not it's                    
 desirable to limit charter fishing," and added, "It's not just in             
 the commercial fishing area that people see a need to limit the               
 continued entrance to the fisheries."                                         
                                                                               
 Number 295                                                                    
                                                                               
 REPRESENTATIVE OGAN indicated that he would like to "keep abreast             
 of that issue" and asked if there was a point system like the one             
 in the Big Game Commercial Services Board and referred to that one            
 as a "liar's contest."                                                        
                                                                               
 MS. GHARRETT said, "Our problem is not an in or out type of system.           
 We have an eligibility in which you're in or out and once you're              
 eligible, the question is what is the size of your quota share                
 award.  This program was designed to award quota share initially to           
 vessel owners who may or may not have been fisherman at any                   
 particular time and leaseholders.  And the idea behind that was               
 that primarily these are the people who shoulder the financial                
 burdens of fishing by having a large capital investment...  The               
 eligibility criteria were U.S. citizenship and owning or leasing a            
 boat during that three-year window and you must have had legal                
 fixed gear commercial landings...  It does not include sport fish,            
 charter fish, or fish taken under state limited entry programs                
 which are separately regulated.  The other part of the answer to              
 your question is that they have at least 150 days on the harvesting           
 crew of a U.S. Commercial Fishery.  The council and the secretary             
 deemed this as a substantial dependence and risk-taking involved in           
 that fishery and therefore may apply to us for a certificate saying           
 they are transfer eligible and may buy into the fishery.  This was            
 seen as a way for children of persons who owned or leased boats to            
 move into the fishery."                                                       
                                                                               
 Number 344                                                                    
                                                                               
 REPRESENTATIVE DAVIS asked if there was the distinction in permits            
 varies by boat size.                                                          
                                                                               
 MS. GHARRETT explained the variations in quota share issued.                  
                                                                               
 REPRESENTATIVE DAVIS asked if one company could purchase many IFQs.           
                                                                               
 MS. GHARRETT spoke about the purchase limitations of IFQs saying,             
 "You may only hold an amount of quota share in a particular                   
 person's name.  So let's just say a corporation was initially                 
 issued quota share, we would restrict them from acquiring more                
 beyond their use limit.  Also, we have only a certain amount which            
 may be used on a particular vessel in a given year..."                        
                                                                               
 Number 486                                                                    
                                                                               
 REPRESENTATIVE ELTON asked about the specifics of transferring                
 permit shares.  He asked, "So you won't approve transfers to                  
 brokers?"                                                                     
                                                                               
 MS. GHARRETT agreed, but qualified that a certain number of IFQs              
 will transfer by a security agreement or operation of law and would           
 be honored by them.  She specified, "A bank could collateralize               
 their quota share purchases.  The bank might repossess it.  We                
 would effect that transfer in that the bank could not just find               
 someone to go fish it.  One of the restrictions is that, in                   
 Southeast Alaska..., you may not transfer to a corporation or a               
 partnership.  It must be transferred to an individual."                       
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 CHAIRMAN AUSTERMAN thanked his guest and adjourned the meeting at             
 6:30 p.m.                                                                     
                                                                               
                                                                               

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