02/16/2004 09:00 AM House FSH
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 16, 2004
9:00 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Cheryll Heinze
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative David Guttenberg
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative William K. Williams (via teleconference)
COMMITTEE CALENDAR
HOUSE BILL NO. 409
"An Act relating to the maximum length of salmon seine vessels;
and providing for an effective date."
- MOVED CSHB 409(FSH) OUT OF COMMITTEE
HOUSE BILL NO. 415
"An Act authorizing a commercial fisherman to fish in each
fishery for which the commercial fisherman holds a commercial
fishing entry permit; relating to the power of the Alaska
Commercial Fisheries Entry Commission and the Board of Fisheries
to limit the number of fisheries in which a person may hold an
entry permit and operate gear during a fishing season or a year;
and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 409
SHORT TITLE: SEINE VESSEL LENGTH
SPONSOR(S): REPRESENTATIVE(S) WILLIAMS BY REQUEST OF SALMON
INDUSTRY TASK FORCE
01/28/04 (H) READ THE FIRST TIME - REFERRALS
01/28/04 (H) FSH, RES
02/09/04 (H) FSH AT 9:00 AM CAPITOL 124
02/09/04 (H) Heard & Held
02/09/04 (H) MINUTE(FSH)
02/16/04 (H) FSH AT 9:00 AM CAPITOL 124
BILL: HB 415
SHORT TITLE: FISHING IN MORE THAN ONE FISHERY
SPONSOR(S): REPRESENTATIVE(S) WILLIAMS BY REQUEST
01/29/04 (H) READ THE FIRST TIME - REFERRALS
01/29/04 (H) FSH, RES
02/16/04 (H) FSH AT 9:00 AM CAPITOL 124
WITNESS REGISTER
MAC MEINERS, Purse Seine Vessel Owner and Purse Seiner
Juneau, Alaska
POSITION STATEMENT: Testified on HB 409 in support of the
ability to increase vessel length to enhance safety, onboard
processing, and fish quality; answered questions.
BRUCE SCHACTLER, Board Member
United Fishermen of Alaska (UFA)
Kodiak, Alaska
POSITION STATEMENT: Testified on HB 409 on his own behalf and
as a member of the UFA board; said he wants Board of Fisheries
decisions to be final; discussed the need for a dedicated
onboard processing area and options for marketing fish.
DOUG MECUM, Director
Division of Commercial Fisheries
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 409, said ADF&G has no
management or conservation concerns about the 58-foot limit and
is confident concerns can be worked out through the board
process; answered questions.
HARVEY GOODELL, Setnetter
Kodiak, Alaska
POSITION STATEMENT: Expressed concern about allocation issues
relating to HB 409 and said it seems early to go this route;
answered questions.
GERALD McCUNE, Lobbyist
for United Fishermen of Alaska (UFA)
Cordova, Alaska
POSITION STATEMENT: During hearing on HB 409, said he didn't
have an answer yet on UFA's position; responded to questions
about a letter from Cordova District Fishermen United (CDFU) in
opposition to HB 409, noting that he is president of that
organization.
STEPHEN WHITE, Senior Assistant Attorney General
Natural Resources Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 409, said the
constitutional concerns aren't settled; answered questions about
the board process, intent language, and grandfather provisions.
TIM BARRY, Staff
to Representative William K. Williams
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions on behalf of
Representative Williams, sponsor of HB 409 by request of the
Joint Legislative Salmon Industry Task Force; spoke briefly on
HB 415 on behalf of Representative Williams, sponsor by request,
and deferred to Mr. McCune to address philosophical differences
between the two bills.
ACTION NARRATIVE
TAPE 04-6, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 9:00 a.m. Representatives Seaton,
Wilson, Ogg, and Samuels were present at the call to order;
Representative Gara arrived soon thereafter. Representatives
Heinze and Guttenberg arrived as the meeting was in progress.
Also in attendance was Representative Williams (via
teleconference).
HB 409-SEINE VESSEL LENGTH
[Contains discussion of HB 415]
Number 0063
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 409, "An Act relating to the maximum length of
salmon seine vessels; and providing for an effective date."
[HB 409 was sponsored by Representative Williams by request of
the Joint Legislative Salmon Industry Task Force; Representative
Williams, who was on teleconference, deferred to Tim Barry to
add anything further.]
CHAIR SEATON informed members of a possible interaction and
conflict in philosophy between HB 409 and HB 415; thus the
hearing on HB 409 would be interrupted later in order to
consider its relationship with HB 415 before moving it from
committee. He announced that public testimony [begun
February 9] would resume.
Number 0256
MAC MEINERS, Purse Seine Vessel Owner and Purse Seiner, began by
indicating he fishes off Kodiak Island using a 38-foot vessel
and has a permit in Southeast Alaska. He offered his belief
that the limit for seine boats should be increased for several
reasons: for safety; to be able to process fish on board,
especially now that the markets have changed; and to get higher
quality. Mr. Meiners surmised that at age 52, he is about the
average age for a permit holder and remarked, "I started seining
in 1967, and I'd like to see some kind of change soon, before
I'm done."
Number 0361
CHAIR SEATON asked why Mr. Meiners wants the limit raised beyond
58 feet if his vessel is 38 feet now.
MR. MEINERS answered that the gear doesn't change. He has a big
net, a big skiff, and a big block. If he had to change now, he
wouldn't want to have to change again because of the cost. For
example, if he wants to get a good RSW [refrigerated sea water]
system and start onboard processing, now is the time. In
further response, he said he'd like to reinvest in the industry
and that perhaps some changes would come along to make it viable
again so fishermen can make money. "Unless things change,
you're crazy to put any kind of money into the fishery," he
added, stating the need for some kind of incentive.
MR. MEINERS, in response to further questions, said he'd fished
58-footers as a kid and through the herring seasons and so
forth; they're a great tool for fishing for sockeye at the south
end of Kodiak Island. With the markets changing and the fleet
shrinking, however, he said he feels the need to "range around"
and go to the Alaska Peninsula and Cook Inlet, for instance, and
to the hatcheries; he doesn't catch hatchery fish now because he
can't pack enough to town to make it pay. Mr. Meiners explained
that he needs a vessel that allows onboard processing in order
to make more money; he estimated 68 feet to 72 feet would be
right. For deck space, an extra 10 feet or so is needed because
the current rules say there must be a covered deck in order to
process on board.
Number 0681
CHAIR SEATON pointed out that [HB 409] doesn't eliminate the 58-
foot limit, but just moves the authority from the legislature to
the Board of Fisheries.
MR. MEINERS said he understood that, but emphasized the need for
some tools in order to move forward.
Number 0756
REPRESENTATIVE GARA asked Mr. Meiners to elaborate on why a 72-
foot boat, for example, would increase the range.
MR. MEINERS responded that it's not only range, but also safety,
because a bigger boat is a safer platform. With the price so
low, he said, people are doing things they haven't done before
because "they have to make it, especially with the larger boats;
they're fishing a lot rougher weather, they're taking a lot more
chances, and a lot of times, the fish are there when it's really
rough - that's always the best fishing."
REPRESENTATIVE GARA asked whether there is an appreciable
difference between a 58-foot boat and a 72-foot boat, then, in
the ability to fish "bigger water."
MR. MEINERS said there is a tremendous amount of difference. In
addition to the length, he noted that the beam would increase.
He emphasized the need to be able to process on board in order
to move forward right now.
Number 0894
REPRESENTATIVE OGG asked whether Mr. Meiners favors the 66
percent vote of those who hold the entry permits.
MR. MEINERS replied, "If it's by the same fishermen only, and
not the setnetters, meaning the ... seine permit holders should
be able to vote on seine permit issues."
REPRESENTATIVE OGG asked whether Mr. Meiners would object to
having no vote and just letting the Board of Fisheries decide,
as happens for other fishery regulations.
MR. MEINERS responded that he'd just let the board rule, which
would be easier.
CHAIR SEATON acknowledged that Representative Heinze had joined
the meeting.
Number 1028
REPRESENTATIVE HEINZE indicated she'd heard that the Board of
Fisheries wouldn't have money to implement a lot of its
authority because of budget cuts. She asked Mr. Meiners whether
that is of concern to him.
MR. MEINERS surmised he'd have to deal with it, as happens
wherever there are budget cuts. He said he'd participated at
Board of Fisheries meetings many times and was awaiting this
cycle on Kodiak Island, which should be "a lot of fireworks."
Number 1089
REPRESENTATIVE WILSON expressed strong concern about leaving
that provision [for a vote] in, since nowhere else does it say
that after the Board of Fisheries makes a decision, the
fishermen can decide whether they like it. She asked why it's
in the bill.
CHAIR SEATON suggested addressing that during committee
discussion.
MR. MEINERS opined that it would never work.
CHAIR SEATON acknowledged that Representative Guttenberg had
joined the meeting.
Number 1176
REPRESENTATIVE GARA asked whether there is a threat that larger
businesses, which can afford much larger boats, may drive
smaller seiners out of business.
MR. MEINERS replied that the smaller seiners are out of business
anyway, and a few remain because of "low budget, high yield."
He said he's tired of "going on a camping trip" with no shower,
for example, and wants "a little better business plan going in,
if we could expand the horizons."
REPRESENTATIVE GARA asked whether that could be accomplished
with a 58-foot boat.
MR. MEINERS reiterated the need for onboard processing and an
extra 10 or 15 feet to do that. He said as markets shrink,
there are fewer places to sell fish for any kind of money.
Number 1322
REPRESENTATIVE GARA explained that although he's convinced of
the need to increase the limit to 72 feet, for example, he isn't
convinced about increasing it to 200 feet, and there isn't any
upper limit in the bill.
MR. MEINERS pointed out that there are gear restrictions.
Suggesting the size of cable needed on a 200-foot boat would be
cost-prohibitive, he stated his belief that there won't be 200-
foot boats. Providing details on seine nets, he said it's the
net that catches the fish, and he has a huge net on his small
boat.
REPRESENTATIVE GARA asked whether a loophole in gear
restrictions would let someone with a much bigger boat carry two
or three seine nets, for instance, if the technology [changed].
MR. MEINERS said laws are such that there can only be one piece
of fixed gear on a boat.
REPRESENTATIVE SAMUELS remarked that the gear type dictates,
more than the size of the boat.
Number 1486
BRUCE SCHACTLER, Board Member, United Fishermen of Alaska (UFA),
testified on his own behalf and as an elected, at-large delegate
on the UFA board, though not on behalf of the board itself. He
offered his belief that Mr. Meiners had covered it quite well.
CHAIR SEATON, in response to a remark from Mr. Schactler,
clarified that the proposed vote is following [the Board of
Fisheries' decision], and regulations don't go into effect until
the [permit] holders approve the regulations.
MR. SCHACTLER said he believes this is unworkable and that he'd
like to have the Board of Fisheries make a ruling that is "the
end of the show." He agreed with Mr. Meiners about processing,
saying it can't be done effectively on a 58-footer, though a few
are trying. Mr. Schactler said there just isn't enough room,
including enough bunks for the people involved or enough deck
space; at minimum, another 15 feet or so is needed to sort and
bleed the fish, for example, and a dedicated processing area is
required. He also suggested it isn't realistic that someone
will come into this program with a huge vessel, or that many
people will do this at all.
Number 1707
MR. SCHACTLER mentioned going forward with processing and
marketing one's own fish, and emphasized the need for options.
He said there have been no changes in the limited entry system
of 1972 or the "58-foot limit of 1959," and yet the world and
the markets have changed. He asked the committee to view it
from that perspective and said there is no scam or hidden agenda
here. He asserted that people won't catch more fish with 70-
foot boats and remarked, "It's what you do with the fish after
you catch them; that's what this bill is all about." He said
he'd certainly support this, and stated his intention of
testifying on the next bill [HB 415]. In response to questions
from Chair Seaton, Mr. Schactler said his 52-foot vessel has
been for sale for two or three years and he'll move to a larger
vessel as soon as he sells this one.
Number 1916
REPRESENTATIVE OGG conveyed his understanding that Mr. Schactler
has participated in allocation issues and the change in
regulations in the Kodiak management area. He asked whether he
believes this [58-foot limit] would be an easy regulation to
change.
MR. SCHACTLER replied that it should be, although he wouldn't
bet on what a group of fishermen might want to do. He related
his belief that someone with a 75- or 80-foot [seine boat] who
is also processing those fish will catch fewer fish. It takes a
long time and a lot of people to process these fish; after a set
is made, those fish need to be taken care of before more fishing
takes place. Expressing the desire to catch 100,000 pounds but
sell it for $4 [a pound], rather than 1.5 million pounds at
6 cents or 7 cents, he suggested people will support the bill if
they realize it isn't a scam or an allocation issue and that
there's no loophole.
REPRESENTATIVE OGG asked whether Mr. Schactler supports just the
Board [of Fisheries] having the authority, with no vote by the
fishermen.
MR. SCHACTLER replied, "Yes, I do. Just leave it with the board
and call it good."
Number 2094
DOUG MECUM, Director, Division of Commercial Fisheries, Alaska
Department of Fish & Game (ADF&G), said he'd reiterate his
comments made at the previous hearing. Explaining that the
department has no management or conservation concerns regarding
the 58-foot limit, he expressed confidence that if any such
concerns arise, they can be worked out through the Board of
Fisheries process, as this bill envisions. He also agreed with
previous testifiers that the fisheries are limited by the gear
in terms of "catching power."
MR. MECUM referred to concerns voiced at the previous hearing
about the referendum process; he offered his understanding that
legislative counsel had questioned the constitutionality of that
provision. Mr. Mecum explained that under the current process,
a proposal is submitted by the public or the department; the
Board of Fisheries receives comment from the public and the
department; the board considers the proposal; if it is adopted,
the department writes the regulation; the Department of Law
reviews and then certifies the regulation; that is submitted to
the lieutenant governor for signature; and if it's signed, it
becomes law in 30 days. He surmised that this referendum
[proposed in HB 409] would get inserted between the Department
of Law's certification and the submittal to the lieutenant
governor, a four- or five-month process "on the outside."
Number 2219
REPRESENTATIVE GARA remarked that the bill seems fine, but he
wants to ensure it's written properly. He said generally the
legislature cannot just tell an agency to write regulations
without providing standards; otherwise, it's delegating away its
legislative authority, which the court will say isn't allowed.
Representative Gara asked what standards the seine permit
holders or the board would have to consider when deciding
whether to extend the length of a seine boat. He expressed
concern that standards might need to be included in the bill if
they aren't in statute already.
MR. MECUM acknowledged he isn't a lawyer, but related his
understanding that the bill's intent is to make it possible for
the board to consider allowing vessels in the purse seine
fishery that are longer than 58 feet. He said the 58-foot limit
has been around a long time and the board would use the same
kinds of standards it would use for adopting regulations in
general, that is, "consideration of management and conservation
purposes and issues associated with this, going through the
Administrative [Procedure] Act, just as per usual."
Number 2334
REPRESENTATIVE GARA, noting that he'd missed the previous
hearing, asked whether the state does this already for different
classes of vessels.
MR. MECUM replied that several fisheries around the state have
vessel limits; he cited some Pacific cod fisheries developed in
recent years in the Chignik, Sand Point, and Kodiak areas, as
well as an area by Adak where a new fishery was established some
years ago and "kind of built around this 58-foot limit, I think,
really, partly as a matter of convenience, that is, trying to
establish more local, slower-paced fisheries to benefit the
local communities, utilizing ... the existing 58-foot seine
limits, since most of these boats, at the maximum, ... are limit
seiners."
MR. MECUM reported that other regulations deal with vessel
limits, the most notable being in Bristol Bay, where a 32-foot
limit has existed for a long time under a Board of Fisheries
regulation. Furthermore, the board has been approached and
proposals submitted many times in the past, most recently at the
Bristol Bay meeting a few months ago, when he indicated people
wanted to provide more deck space to do value-added
[processing], for example. He said the board didn't repeal that
[restriction], however, because of a lot of negative testimony.
Mr. Mecum offered his belief that [HB 409] is constructed such
that it allows the Board of Fisheries to work through those
kinds of issues with the public.
Number 2436
REPRESENTATIVE SAMUELS conveyed his belief that this [58-foot]
restriction is the only one in statute.
Number 2453
REPRESENTATIVE HEINZE asked whether Mr. Mecum knows of any
reason this provision allowing more deck space shouldn't be
available.
MR. MECUM reiterated that the department has no management or
conservation issues or concerns associated with this, and would
have the opportunity under the legislation to work through any
that arise. He said it's a policy call of the legislature,
since there are some socioeconomic issues.
Number 2496
CHAIR SEATON asked Mr. Mecum whether he sees any problems with
removing the seine fleet's 58-foot limit as it might interact
with the 58-foot limit in Western Alaska, which exists to slow
down the groundfish fisheries and for conservation there.
MR. MECUM said he doesn't. He elaborated:
If someone submitted a proposal to the Board of
Fisheries to allow larger vessels in those fisheries,
which is what they would have to do to get that
lifted, the board would consider that and the
department would provide comment. I think allowing
larger vessels in that fishery would certainly be ...
something the board had the authority to do.
But ... allowing those larger vessels would certainly
be at odds with the objectives and the guiding
principles that the Board of Fisheries has established
for those, that is, local-based, small, slow-paced,
benefiting the communities, and ... spreading the
season length out to improve markets, et cetera, et
cetera. In my mind - it's just my ... personal
opinion - it's unlikely that they would repeal that.
Number 2580
CHAIR SEATON mentioned testimony about 70- to 80-foot vessels.
He asked, if those vessels were becoming catcher-processors,
whether existing vessels would qualify under the U.S. Coast
Guard classification or whether reclassification would fairly
much mean that all vessels, to participate in that way, would
have to be new, constructed to ABS [American Bureau of Shipping]
standards, and so forth. He asked whether Mr. Mecum was
familiar with "any of that that's gone on."
MR. MECUM said he wasn't familiar enough to respond.
Number 2619
REPRESENTATIVE GUTTENBERG, with regard to the vote [of permit
holders] proposed in the bill, asked whether the department had
considered how that process would take place, including notice
requirements, ensuring eligibility to vote, and so forth.
MR. MECUM said it was discussed and he understood what he
believed the sponsor was trying to accomplish. He emphasized
that it's a choice for the legislature, but offered his view
that the referendum or election would make it fairly difficult
to change this [58-foot] requirement. He said his intent in
developing regulations would be to work off a current list of
permit holders, depending on when the election would be held;
there would be one vote only.
REPRESENTATIVE GUTTENBERG asked whether Mr. Mecum foresees
changes in gear types down the road, following a change to
larger vessels.
MR. MECUM replied that he's sure there will be such proposals,
but believes it's unlikely they'll be adopted, although it's not
outside the realm of possibility. He said seines used in
Southeast Alaska are fairly large, for example, and he feels
"fairly confident that we'll be able to work through those
issues ... associated with changes in vessel size through the
Board of Fisheries process."
Number 2790
HARVEY GOODELL, Setnetter, noting that he fishes on Kodiak
Island, expressed concern about allocation issues. For example,
[seiners] may say they want larger vessels in order to be
catcher-processors, but may just end up harvesting, with the
ability to fish in tougher weather than now; this would be hard
on Mr. Goodell's fishery. A lot of 58-foot boats around Kodiak
no longer seine, and he indicated people are trying out
processing on some of the smaller boats. He closed by saying it
seems a little early to go this route.
MR. GOODELL replied to questions from Chair Seaton. On the
proposed vote, he said it seems all gear types in an area should
have some say. As far as transferring authority to the Board of
Fisheries, he said the board has a pretty full platter and he
has a concern about going that route; he acknowledged that some
of that may stem from fear down the road of having larger gear
types [for seiners]. In response to Representative Gara, he
said around Kodiak maybe one-third of [seine] permit holders
actually fish these days; polling all of them might impact his
setnet fishery.
REPRESENTATIVE GARA asked whether the allocation concern is that
there'll be more fish for seiners and fewer for setnetters.
MR. GOODELL said it seems the potential is there.
CHAIR SEATON asked Mr. McCune, who'd testified at the previous
hearing, whether UFA [United Fishermen of Alaska] had taken a
position on the bill.
Number 3001
GERALD McCUNE, Lobbyist for United Fishermen of Alaska
identified himself. [Tape 04-6 ends; nothing was recorded on
Side B.]
TAPE 04-7, SIDE A
Number 0001
MR. McCUNE said he was in the process of getting it cleared up
as to whether people [in UFA] want the vote.
Number 0177
REPRESENTATIVE GARA read the last sentence of a letter from
Cordova District Fishermen United (CDFU) [dated February 11,
2004, in opposition to HB 409] as follows: "We feel this bill
will not help in the revitalization of the salmon industry but
could actually be a detriment to the Prince William Sound seine
fishery by encouraging fishermen to overcapitalize." He asked
whether that's a concern Mr. McCune could comment on and whether
any UFA members had discussed it with him.
MR. McCUNE surmised that a business decision would be made based
on the person's plan and the size limit set by the Board of
Fisheries, for example. Noting that he's president of CDFU, he
said in Prince William Sound "they never wanted bigger vessels
there," and seining there with an 80- or 90-footer isn't
practical for because it's primarily rocky. He added that all
permit holders have the ability to go to the Board of Fisheries
if somebody brings forward a proposal and the board accepts it.
"That means setnetters and everybody in the area gets to go have
their say, not just the seiners," he remarked. "So everybody in
the whole area gets to go to that Board of [Fisheries] meeting
and have their say on this ... 58-foot limit, because it becomes
a public ... arena then."
Number 0377
REPRESENTATIVE HEINZE noted that the aforementioned letter talks
about needing a consistent, stable market. She asked why the
author would oppose allowing better processing space for other
fishermen.
MR. McCUNE said that's a good question and added, "They're split
on several issues." He said about 90 seiners there fished last
year, out of 260, and explained:
You have to have a market to be able to fish in Prince
William Sound, obviously, and that's tied to whatever
... arrangements you made with your processor. ...
It's a combination of a couple of things. People are
scared of ... other people coming in and trying to
take their market, ... or they still know the
safeguards are in there, but they're not comfortable
with that, I guess. ... That's what I got out of the
meeting that we had there in Cordova.
Number 0508
STEPHEN WHITE, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Juneau), Department of Law,
began by saying he has been advising and representing the Board
of Fisheries for about a dozen years. He noted that
Mr. Utermohle [drafting attorney with Legislative Legal and
Research Services, who'd written a memorandum dated December 3,
2003, to Representative Williams] had raised the issue of
whether this opportunity for the fishermen to vote after the
board has adopted the regulation violates the constitutional
"delegation of powers" doctrine. Mr. White said this is a
legitimate question; he himself is looking into it. He reported
that there are no Alaska decisions either for or against it, in
terms of constitutionality, though there are cases in other
states that he's looking at. Right now, it's an unsettled
question.
MR. WHITE turned attention to concerns raised by Representative
Gara about allocation issues that might arise if the board
considers increasing a vessel's limit. Mr. White said:
It's important to note that in the statute that
governs the board's authority, if any allocation issue
gets presented to the board by a proposal, the board
is required to go through criteria and determine the
allocation impacts on competing fishery ... gear
groups. And they have to look at things like historic
participation or historic catch between the two
groups, the economic impacts, the benefit to the
communities, and so forth. So the law requires them
to go through specific criteria in order to resolve an
allocation issue if that's raised in a proposal.
MR. WHITE, in response to a question from Representative Wilson,
said [the board members] must address those criteria the best
they can; otherwise, the decision affecting allocation can be
challenged successfully in court.
Number 0679
REPRESENTATIVE GARA asked whether [the board] must weigh those
impacts and make a finding that there won't be undesirable
impacts on allocation, or just has to consider them.
MR. WHITE answered that he thinks the consideration has to be
meaningful. Giving an example of an allocation involving two
competing gear groups, he said if there's information before the
board which deals with that issue, then the [board] members
should talk about it, but can use their own professional
experience to make a determination. He continued:
The courts require them ... to take a hard look at
issues. They don't require them to necessarily
objectify things and determine ... 60-40 or anything
like that. As long as they've considered the evidence
before them and made a decision that has some
reasonable basis, that's all the courts require.
Number 0796
MR. WHITE, in response to Chair Seaton, clarified that
allocation issues are spread across the proposals at board
meetings and may involve 40 to 60 percent of them. Noting that
ADF&G doesn't weigh in on the allocation issues, he explained:
They strictly are there to help the conservation side.
But once allocation issues come up, then the board
relies upon the testimony of ... the affected
fishermen and ... processors and so forth. And they
look at it all, and they apply the criteria I've
mentioned, and they come up with a decision. And in
recent years their decisions have been fairly
successful in terms of being able to be defended by my
department.
Number 0900
REPRESENTATIVE GARA asked Mr. White whether a statement of
intent should be included in the bill that says, "By extending
the boat size limit, our intention is not, then, to ...
encourage future changes in gear requirements." He noted that
an issue had been raised by Representative Guttenberg about
increasing the size limit and then having the owners of 90-foot
boats request gear-change rules, to the detriment of others.
CHAIR SEATON emphasized that the bill doesn't change the vessel
size limit, but transfers authority to make those decisions to
the Board of Fisheries. He requested that the discussion focus
on the bill, not the framework of "as if we were eliminating the
statewide 58-foot limit here."
REPRESENTATIVE GARA pointed out that this says there will be a
process by which to increase the vessel size limit. He surmised
that someday under this process the 58-foot limit would be
increased; otherwise, the committee wouldn't be considering
passage of the bill.
[Chair Seaton requested that Representative Gara restate his
question to Mr. White, which he did.]
Number 1102
MR. WHITE replied that he thinks letters of intent, rather than
express statutory language, are problematic because they state
intent and yet don't provide a specific restriction. If the
foregoing is the intent, Mr. White suggested that a proposed
committee substitute (CS) be drafted that says, "If the board
extends vessel length, they should not therefore consider
subsequent gear changes in the fishery." He clarified that he
wasn't recommending it [one way or another], but that legally it
would be clearer to put it in statute.
MR. WHITE, with regard to the Board of Fisheries, said he has
seen a lot of gear change [proposals] come before the board; the
board looks at those very carefully and considers allocation
issues, economic issues, and so forth. He remarked, "So far,
they've not had a difficult time of disassociating something
like extending a vessel length with adding additional gear. So
- my experience - it would not ... create a problem."
REPRESENTATIVE SAMUELS suggested if this gets into [specifying]
gear types, the Board of Fisheries might as well be disbanded,
which he surmised committee members don't want to do.
Number 1220
REPRESENTATIVE GUTTENBERG noted that the first part of the bill
gives the board the ability to change the vessel size by
regulation, but the last part says that if things change, those
vessels can't be [forced to leave] the fleet. He asked what
happens to the board's management ability in that case.
MR. WHITE replied that he thinks it's something the board will
consider when deciding in the first place whether to expand [the
size limit].
Number 1288
CHAIR SEATON asked whether it's normal, when the Board of
Fisheries has options, that "grandfather clauses" remain in
effect even if a regulation is changed back.
MR. WHITE responded that grandfather clauses have "legal
legitimacy" and have been upheld. They're often used in order
to prevent distress to people who've already invested, if it
would create great economic hardship for them to get rid of
their vessels, for example. He said it's not uncommon to see
those things "throughout regulatory action."
CHAIR SEATON mentioned cod plans that went into effect and a 58-
foot limit in Area M in Western Alaska. He noted that [the
board] didn't say anyone who'd been fishing with a 120-footer
could continue to fish, but had generated a regulation saying a
boat must be [58 feet or less] in order to participate. He
asked whether doing this in statute sets a precedent for the
Board of Fisheries, since the regulation could be changed back
but then wouldn't be in effect for those vessel owners.
MR. WHITE replied that this statutory authority - the
grandfather clause - would be limited to this circumstance and
wouldn't create any precedent either way in other circumstances.
Number 1460
CHAIR SEATON asked whether anyone else wished to testify. He
then closed public testimony.
REPRESENTATIVE SAMUELS emphasized that this doesn't change
anything [except the authority], and said nothing gets
steamrolled through a Board of Fisheries meeting.
Number 1481
REPRESENTATIVE SAMUELS began discussion of what became
Amendment 1. Noting that he has a problem with the vote of the
permit holders, both in the legal sense raised by Mr. Utermohle
and philosophically, he asked, "Would we let the oil industry
vote on the [regulations] that we apply to them, and if they
don't like them, they get to veto them? I don't think that's
the way that we want to go."
REPRESENTATIVE SAMUELS specified that [Amendment 1] would be on
page 1, lines 9-14, deleting the sentence that reads:
A regulation adopted by the board to authorize the use
of a vessel longer than 58 feet overall length in a
salmon seine fishery or to amend or repeal an
authorization to use a vessel longer than 58 feet
overall length in a salmon seine fishery may not take
affect [sic] unless at least 66 percent of the entry
permit holders for that fishery favor the adoption of
the regulation at a referendum conducted by the
department.
Number 1570
CHAIR SEATON turned attention to what became Amendment 2. He
asked Representative Samuels about statutorily fixing the "58-
foot grandfather clause" in here, when it's not done in any
other Board of Fisheries regulations. That sentence of the bill
[page 1, line 14, through page 2, line 4, later deleted by
Amendment 2], reads as follows:
If a salmon seine vessel longer than 58 feet overall
length is used in a fishery under regulations adopted
under this subsection, the vessel may continue to be
used in the fishery notwithstanding a subsequent
reduction in the maximum length of vessels that may be
used in the fishery by the board.
REPRESENTATIVE SAMUELS said he reads this as saying that if
someone invested in a 70-foot boat but 20 years from now the
Board of Fisheries changed the [regulation] back, "you wouldn't
want to penalize this guy who now has a debt load of $2 million
on a boat, and now you tell him he can't use his boat." He
added that nobody is paying cash for these boats, and thus he
reads this as protecting that person's debt.
CHAIR SEATON said he was curious about the philosophy, noting
that there isn't a similar protection for Bristol Bay such that
if it goes to a 27-foot limit, everybody with a 32-foot boat can
forever use it. He said he understands the purpose, but is
slightly uncomfortable saying the regulatory authority will be
moved to the Board of Fisheries but that something will be left
in statute based on that length.
REPRESENTATIVE SAMUELS replied, "I see ... where you're going,
but this is the only length that's in statute anyway." He
acknowledged that it all could be turned over to the Board of
Fisheries or a little bit could be kept [in statute]; he said
it's a policy choice. He highlighted the difference between
this and the situation in Bristol Bay, and questioned whether
more than a couple of people would buy 70-foot [seine] boats if
the board were to pass such a proposal. He said he'd hate to
penalize people who are willing to invest in the industry.
Number 1748
CHAIR SEATON clarified that he was looking at other board
actions relating to the Pacific cod fishery, for example, where
90-foot and 110-foot boats were fishing but the board
reconfigured the fishery; those boats no longer were able to
participate in that fishery. He said it seems this bill
[creates] a special exemption relating to seine vessels, whereas
for all other vessels the board has the ability to restructure
the fisheries. "I'm not saying that we should wipe out
anybody's investment," he added. "It just seems that if the
philosophy is to move this to the Board of Fisheries, ... I have
a little unease with leaving portions in."
Number 1811
REPRESENTATIVE WILSON explained that she was considering whether
to have the board make the decisions or retain some for the
legislature. She then remarked that perhaps the decisions
should be given to the Board of Fisheries, which doesn't make
these decisions lightly; thus perhaps all that [new language in
the final two sentences of Section 1] should be removed.
REPRESENTATIVE HEINZE commented that with the amendment
Representative Samuels is proposing, she is comfortable with
giving it to the Board of Fisheries.
Number 1859
REPRESENTATIVE OGG alluded to the fact that current AS
16.05.835(a), which Section 1 of the bill amends, states:
(a) A salmon seine vessel may not be longer than
58 feet overall length except vessels that have fished
for salmon with seines in waters of the state before
January 1, 1962, as 50-foot, official Coast Guard
register length vessels.
REPRESENTATIVE OGG offered his belief that the foregoing
recognized that some vessels participating in the fishery were
over the 58-foot limit. "Just because they were designated as
Coast Guard 50-foot vessels, they probably were 50-foot and
bigger," he explained, noting that those were protected to
continue in the fishery. The bill says unless the board creates
a regulation [allowing a longer vessel], the statute [is in
effect]. He suggested this creates a hybrid. He said the
[sentence that became the subject of Amendment 2] seems to
reflect that same policy and perhaps recognizes that the boats
used for this specific fishery wouldn't have a purpose in any
other fishery. He stated support for moving [the authority] to
the Board of Fisheries and for the proposed amendment, when and
if it's made, to remove that one sentence.
Number 2007
REPRESENTATIVE GARA returned attention to what would become
Amendment 1, saying he was uncomfortable removing the
requirement for a vote of 66 percent [of the permit holders]
without at least hearing from the sponsor or those who crafted
the bill. He referred to the statement [in the letter] from
CDFU, saying they'd probably like a voice in their seine fishery
as to whether or not larger vessels come in; he suggested that
is probably the motivation for the 66 percent vote requirement.
[Chair Seaton called upon Representative Williams, but was
informed by the teleconference operator that he'd stepped away
for a minute.]
Number 2077
TIM BARRY, Staff to Representative William K. Williams, Alaska
State Legislature, said this legislation came from the Joint
Legislative Salmon Industry Task Force ("Task Force"), which he
believes made this decision as a whole [on the 66 percent vote
requirement]. He suggested House Special Committee on Fisheries
members who were on the Task Force might be able to speak about
discussions that occurred. "I don't think it's a make-or-break
thing for Representative Williams," he added, noting that Chair
Seaton had discussed this with Representative Williams as well.
Number 2118
CHAIR SEATON pointed out that he wasn't on the "production
subcommittee" that dealt with this bill, but said the Task Force
had dealt with the bill "and there was a comfort level from the
fishermen representatives that were there." Noting that there
had been two House Special Committee on Fisheries hearings at
which fishermen could come forward and express their concerns,
Chair Seaton said he wasn't "hearing from the broad industry the
same ... kind of angst that we heard from several people that
were ... on the Task Force."
REPRESENTATIVE OGG, speaking as another Task Force member, said
Chair Seaton had covered it succinctly.
Number 2170
REPRESENTATIVE GUTTENBERG referred to the 66 percent vote and
said it seems to nullify the bill because it would never happen.
With respect to giving the board the authority and then taking
it away [by retaining the grandfathering language], he expressed
concern about that as well. Although people will have made
investments, that language allows [the board] to manage the
fisheries and then it [no longer can if there is a need to
decrease the size limit]. He said people go in with risks and
things happen. He suggested that if the authority is going to
be given to the board, it should then have that authority.
"Otherwise, don't do it," he concluded.
Number 2222
CHAIR SEATON said he has a similar feeling on the second
[sentence of the new language, page 1, line 14, through page 2,
line 4]. He agreed that if the Board of Fisheries increases the
length and then finds it's a problem, the board is stuck with
that forever. He said he has a problem leaving that
"grandfather-reversion clause" in, and wants the amendment to
include everything from line 9 to the end [of the new language,
page 2, line 4]. That way, [authority] is given to the board,
which can consider allocation issues, is charged with management
of the fisheries, will have to do the best job it can, and will
have to manage the fisheries for the best interests of the
state.
Number 2308
REPRESENTATIVE SAMUELS moved to adopt Amendment 1, on page 1,
lines 9-14, deleting the sentence that begins with "A
regulation" and ends with "referendum conducted by the
department." There being no objection, it was so ordered.
Number 2328
REPRESENTATIVE WILSON moved to adopt Amendment 2, deleting the
sentence beginning on page 1, line 14, through page 2, line 4.
Number 2364
REPRESENTATIVE SAMUELS objected for purposes of discussion. He
said he could argue both sides of this, and asked whether
Representative Williams was available yet.
[Chair Seaton asked whether Representative Williams was back on
teleconference; there was no response.]
MR. BARRY offered his belief that the thinking behind the
sentence [to be deleted by Amendment 2] was what Representative
Samuels had spoken about earlier: if the bill passes and the
board raises the limit, some fishermen will buy larger boats;
this sentence provides some assurance that if the board then
lowers the limit, those fishermen won't have to sell their
boats.
Number 2494
REPRESENTATIVE WILSON asked Mr. Barry whether he believes the
Board of Fisheries should have the ability to change it back if
the fishery is at risk because [the board had raised the limit].
MR. BARRY said he didn't know whether there'd been discussion of
when the fishery itself is at risk. He added, "If the idea
behind this piece of legislation is to encourage fishermen to
diversify, to try to do new things, to add value to their
product, ... the idea was to give them some assurance that that
investment will not be for naught." He further said the idea is
that fishermen will be able to operate "in that fashion" for
many years to come, although regulations might change.
REPRESENTATIVE WILSON expressed concern. Mentioning Southeast
Alaska, she emphasized the need for flexibility [by the board]
for the sake of the fishery.
MR. BARRY replied that he thinks he can speak for Representative
Williams when saying he would share Representative Wilson's
concerns. Mr. Barry reiterated that there was some concern,
which he believes was expressed by fishermen, that they wanted
assurance that it will be worth it if they invest in larger
boats.
CHAIR SEATON suggested that the same desire for a guarantee of
control had related to the 66 percent vote requirement.
Number 2561
REPRESENTATIVE WILSON pointed out that everyone wants assurance
when investing in a business that there'll be no risk, but said
that's part of every endeavor. She added, "That's why they have
to weigh carefully what they're going to do and what the
ramifications could be. ... We all do that when we invest in
anything."
CHAIR SEATON said he'd support the amendment. He explained that
he has the same concern about taking away the ability of the
board, since the purpose of this [bill] is to give it regulatory
flexibility. He agreed that the board doesn't do things
lightly. Unless it became a conservation problem in a fishery
or an unintended consequence posed a real problem in managing
the fishery, he surmised that there would be "real legal
problems" if the board acted without a rational basis.
REPRESENTATIVE GARA added, "We don't have to worry about it also
because ... there are a hundred different gear and other
requirements in the statutes. Not all of those are followed by
another sentence that says, 'If this is changed in the future,
all existing things will be grandfathered in.'" He said he was
comfortable taking it out [and thus supporting Amendment 2].
Number 2665
REPRESENTATIVE HEINZE said she was comfortable retaining that
language. It seems the Joint Legislative Salmon Industry Task
Force is trying to do everything it can to help the industry,
she said, and while she understands what Representative Wilson
is saying about risk, the fishermen should be helped out a
little bit. Thus she'd have trouble supporting the amendment.
CHAIR SEATON said he doesn't believe it's so much the person's
financial risk, but the risk to the fishery. If there are
unintended consequences from lengthening the vessels and the
board needs to redo the regulations in order to manage the
fishery, that's a question to consider. He said he understands
the investment argument, however.
REPRESENTATIVE SAMUELS said he would reluctantly maintain his
objection.
REPRESENTATIVE OGG and REPRESENTATIVE HEINZE also objected.
A roll call vote was taken. Representatives Gara, Guttenberg,
Wilson, and Seaton voted in favor of Amendment 2.
Representatives Heinze, Samuels, and Ogg voted against it.
Therefore, Amendment 2 was adopted by a vote of 4-3.
CHAIR SEATON announced that the hearing on HB 409 would be
suspended temporarily.
HB 415-FISHING IN MORE THAN ONE FISHERY
[Contains discussion of HB 409]
Number 2800
CHAIR SEATON announced that the next order of business would be
HOUSE BILL NO. 415, "An Act authorizing a commercial fisherman
to fish in each fishery for which the commercial fisherman holds
a commercial fishing entry permit; relating to the power of the
Alaska Commercial Fisheries Entry Commission and the Board of
Fisheries to limit the number of fisheries in which a person may
hold an entry permit and operate gear during a fishing season or
a year; and providing for an effective date."
Number 2807
REPRESENTATIVE WILSON moved [to adopt the proposed committee
substitute (CS), Version 23-LS1416\H, Utermohle, 2/13/04, as a
work draft].
CHAIR SEATON announced that Version H was before the committee.
Number 2817
CHAIR SEATON explained that there is a philosophical issue that
he wanted the sponsor or his staff to address. In HB 409, the
position is that these authorities should be moved to the Board
of Fisheries to do regulations and have control of the
fisheries, including allocation issues and so forth. However,
HB 415 takes regulations that the Board of Fisheries has in
place and overrides them. He pointed out that the Board of
Fisheries and the Commercial Fisheries Entry Commission (CFEC)
have regulations such that someone can only fish in one salmon
administrative area per year. Thus he wanted the committee to
address the conflicting philosophies before voting on either
bill.
[Representative Williams, sponsor, deferred to Mr. Barry.]
Number 2951
TIM BARRY, Staff to Representative William K. Williams, Alaska
State Legislature, explained that Representative Williams had
introduced HB 415 at the request of the United Fishermen of
Alaska (UFA). Noting that this issue was discussed during the
Joint Legislative Salmon Industry Task Force process, Mr. Barry
said UFA had asked Representative Williams to sponsor this bill
separately. He deferred to Mr. McCune [lobbyist for UFA] to
address the issue raised by Chair Seaton. [Tape 04-7 ends;
nothing was recorded on Side B.]
TAPE 04-8, SIDE A
Number 0001
CHAIR SEATON, noting that floor session would begin soon,
announced that the committee would wait to address the bill
further. [HB 415 was held over.]
HB 409-SEINE VESSEL LENGTH
Number 0090
CHAIR SEATON returned attention to HOUSE BILL NO. 409, "An Act
relating to the maximum length of salmon seine vessels; and
providing for an effective date."
Number 0153
REPRESENTATIVE GUTTENBERG noted that now the bill just says the
authority is being given to the board, and he doesn't know the
board's position on this. He remarked that it certainly is more
palatable the way it is now, and noted that he'll hear it again
in the House Resources Standing Committee.
REPRESENTATIVE GARA announced that he was going to support the
bill, but wanted to state a concern. He said he is satisfied
the bill as written is fine constitutionally, but offered his
belief that, as a matter of practice, it is a bad idea to
propose legislation that tells an agency to come up with
regulations without telling the agency the concerns and without
giving any direction as to the motivation.
Number 0294
REPRESENTATIVE WILSON moved to report HB 409, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHB 409(FSH) was
reported from the House Special Committee on Fisheries.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
10:30 a.m.
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