Legislature(1995 - 1996)
03/20/1996 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 20, 1996
1:10 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HOUSE BILL 339
"An Act relating to the termination of parental rights of
incarcerated parents."
- CSHB 339(JUD) MOVED FROM COMMITTEE
HOUSE BILL 387
"An Act rearranging existing provisions of AS 47.10 into chapters
separately addressing the topics of children in need of aid,
delinquent minors and the institutions, facilities, and management,
administration, and oversight of programs relating to minors, and
conforming references and making other conforming changes due to
that rearrangement; amending the manner of determining support
obligations for children in need of aid and delinquent minors;
amending the purpose of delinquency provisions; amending hearing
procedures used in delinquency proceedings; amending provisions
relating to enforcement of a restitution order entered against a
minor; setting out the considerations to be given by a court in
making its dispositional orders for minors adjudicated delinquent;
authorizing municipalities to establish curfews for minors by
ordinance; relating to enforcement of truancy under the compulsory
school attendance law; and amending Rule 23(d), Alaska Delinquency
Rules."
- CSHB 387 (JUD) MOVED FROM COMMITTEE
HOUSE JOINT RESOLUTION 51
"Proposing an amendment to the Constitution of the State of Alaska
relating to limited entry for sport fish guides and allied
professions."
- HJR 51 MOVED FROM COMMITTEE
HOUSE BILL 368
"An Act relating to election campaigns, election campaign
financing, the oversight and regulation of election campaigns by
the Alaska Public Offices Commission, the activities of lobbyists
that relate to election campaigns, and the definitions of offenses
of campaign misconduct; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL 443
"An Act relating to the tax on transfers or consumption of motor
fuel, and repealing the exemption from that tax for motor fuel
which is at least 10 percent alcohol by volume; and providing for
an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 339
SHORT TITLE: PRISON & TERMINATION OF PARENTAL RIGHTS
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG,Mulder,Robinson,B.Davis
JRN-DATE JRN-PG ACTION
05/08/95 1976 (H) READ THE FIRST TIME - REFERRAL(S)
05/08/95 1976 (H) HES, STATE AFFAIRS, JUDICIARY
01/23/96 (H) HES AT 3:00 PM CAPITOL 106
01/23/96 (H) MINUTE(HES)
01/24/96 2528 (H) COSPONSOR(S): MULDER
01/30/96 2573 (H) COSPONSOR(S): ROBINSON
02/15/96 (H) HES AT 3:00 PM CAPITOL 106
02/15/96 (H) MINUTE(HES)
02/19/96 2800 (H) HES RPT CS(HES) NT 3DP 3NR
02/19/96 2801 (H) DP: ROKEBERG, TOOHEY, ROBINSON
02/19/96 2801 (H) NR: G.DAVIS, BUNDE, BRICE
02/19/96 2801 (H) ZERO FISCAL NOTE (DHSS)
02/22/96 (H) STA AT 8:00 AM CAPITOL 102
02/22/96 (H) MINUTE(STA)
02/23/96 2867 (H) STA RPT CS(HES) NT 3DP 1NR
02/23/96 2868 (H) DP: JAMES, PORTER, WILLIS
02/23/96 2868 (H) NR: IVAN
02/23/96 2868 (H) ZERO FISCAL NOTE (LAW)
02/23/96 2868 (H) ZERO FISCAL NOTE (DHSS) 2/19/96
03/06/96 (H) JUD AT 1:00 PM CAPITOL 120
03/06/96 (H) MINUTE(JUD)
03/20/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 387
SHORT TITLE: JUVENILE CODE REVISION
SPONSOR(S): REPRESENTATIVE(S) KELLY,THERRIAULT,Rokeberg,Kohring
JRN-DATE JRN-PG ACTION
01/05/96 2367 (H) PREFILE RELEASED
01/08/96 2367 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2368 (H) HES, JUDICIARY, FINANCE
01/19/96 2483 (H) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
01/24/96 2528 (H) COSPONSOR(S): ROKEBERG
01/26/96 2548 (H) COSPONSOR(S): KOHRING
01/30/96 (H) HES AT 3:00 PM CAPITOL 106
01/30/96 (H) MINUTE(HES)
02/22/96 (H) HES AT 3:00 PM CAPITOL 106
02/22/96 (H) MINUTE(HES)
02/29/96 (H) HES AT 3:00 PM CAPITOL 106
02/29/96 (H) MINUTE(HES)
03/08/96 3021 (H) HES RPT CS(HES) NT 1DP 4NR
03/08/96 3022 (H) DP: ROKEBERG
03/08/96 3022 (H) NR: G.DAVIS, BUNDE, ROBINSON, BRICE
03/08/96 3022 (H) INDETERMINATE FISCAL NOTE (DPS)
03/08/96 3022 (H) 2 ZERO FISCAL NOTES (COR, DHSS)
03/08/96 3022 (H) REFERRED TO JUDICIARY
03/20/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 51
SHORT TITLE: SPORT FISHING GUIDE LIMITED ENTRY
SPONSOR(S): REPRESENTATIVE(S) GREEN
JRN-DATE JRN-PG ACTION
12/29/95 2358 (H) PREFILE RELEASED
01/08/96 2358 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2358 (H) STATE AFFAIRS, FSH, JUDICIARY
02/13/96 (H) STA AT 8:00 AM CAPITOL 102
02/13/96 (H) MINUTE(STA)
02/17/96 (H) STA AT 10:00 AM CAPITOL 102
02/17/96 (H) MINUTE(STA)
02/20/96 (H) STA AT 8:00 AM CAPITOL 102
02/20/96 (H) MINUTE(STA)
02/21/96 2822 (H) STA RPT 2DP 4NR 1AM
02/21/96 2822 (H) DP: GREEN, OGAN
02/21/96 2822 (H) NR: JAMES, IVAN, ROBINSON, WILLIS
02/21/96 2822 (H) AM: PORTER
02/21/96 2822 (H) FISCAL NOTE (GOV)
02/21/96 2822 (H) ZERO FISCAL NOTE (LAW)
02/28/96 (H) FSH AT 5:00 PM CAPITOL 124
02/28/96 (H) MINUTE(FSH)
02/29/96 2960 (H) FSH RPT CS(FSH) 3DP 2NR
02/29/96 2960 (H) DP: OGAN, G.DAVIS, AUSTERMAN
02/29/96 2960 (H) NR: ELTON, MOSES
02/29/96 2960 (H) FISCAL NOTE (GOV) 2/21/96
02/29/96 2960 (H) ZERO FISCAL NOTE (LAW) 2/21/96
03/20/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 368
SHORT TITLE: ELECTION CAMPAIGN FINANCE REFORM
SPONSOR(S): REPRESENTATIVE(S) JAMES
JRN-DATE JRN-PG ACTION
12/29/95 2362 (H) PREFILE RELEASED
01/08/96 2362 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2362 (H) STA, JUDICIARY, FINANCE
01/25/96 (H) STA AT 8:00 AM CAPITOL 102
01/25/96 (H) MINUTE(STA)
01/30/96 (H) STA AT 8:00 AM CAPITOL 102
01/30/96 (H) MINUTE(STA)
02/01/96 (H) STA AT 8:00 AM CAPITOL 102
02/01/96 (H) MINUTE(STA)
02/29/96 (H) STA AT 8:00 AM CAPITOL 102
02/29/96 (H) MINUTE(STA)
03/05/96 (H) STA AT 8:00 AM CAPITOL 102
03/05/96 (H) MINUTE(STA)
03/09/96 (H) STA AT 10:00 AM CAPITOL 102
03/09/96 (H) MINUTE(STA)
03/12/96 3087 (H) STA RPT CS(STA) NT 2DP 3NR
03/12/96 3088 (H) DP: JAMES, PORTER
03/12/96 3088 (H) NR: GREEN, IVAN, ROBINSON
03/12/96 3088 (H) FISCAL NOTE (ADM)
03/20/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 443
SHORT TITLE: INCREASE MOTOR FUEL TAX
SPONSOR(S): RULES BY REQUEST OF LONG RANGE FINANCIAL PLAN CMSN
JRN-DATE JRN-PG ACTION
01/22/96 2508 (H) READ THE FIRST TIME - REFERRAL(S)
01/22/96 2508 (H) STATE AFFAIRS, JUDICIARY, FINANCE
03/12/96 (H) STA AT 8:00 AM CAPITOL 102
03/12/96 (H) MINUTE(STA)
03/12/96 (H) MINUTE(STA)
03/14/96 (H) MINUTE(STA)
03/18/96 3175 (H) STA RPT CS(STA) 2DP 3NR
03/18/96 3175 (H) DP: JAMES, PORTER
03/18/96 3175 (H) NR: OGAN, ROBINSON, WILLIS
03/18/96 3176 (H) FISCAL NOTE (DOT)
03/18/96 3176 (H) REFERRED TO JUDICIARY
03/20/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE NORMAN ROKEBERG
Alaska State Legislature
State Capitol, Room 110
Juneau, Alaska 99801-1182
Telephone: (907) 465-4968
POSITION STATEMENT: Testified as sponsor on HB 339
LIZ DODD, Esq.
American Civil Liberties Union, Alaska Chapter
100 Parks Street
Juneau, Alaska 99801
Telephone: (907) 463-2601
POSITION STATEMENT: Testified on HB 339
REPRESENTATIVE PETE KELLY
Alaska State Legislature
State Capitol, Room 513
Juneau, Alaska 99801-1182
Telephone: (907) 465-2327
POSITION STATEMENT: Testified as sponsor on HB 387
L. DIANE WORLEY, Director
Division of Family & Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99801
Telephone: (907) 465-3191
POSITION STATEMENT: Testified on HB 387
ANNE CARPENETI, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3191
POSITION STATEMENT: Testified on HB 387
REPRESENTATIVE JOSEPH GREEN
Alaska State Legislature
State Capitol, Room 24
Juneau, Alaska 99801-1182
Telephone: (907) 465-4931
POSITION STATEMENT: Testified on HJR 51
GARY HULL
P.O. Box 1964
Soldotna, Alaska 99669
Telephone: (907) 262-5601
POSITION STATEMENT: Testified on HJR 51
JAMES FITZGERALD
Kings Sportfish
34794 Poppywood
Soldotna, Alaska 99669
Telephone: (907) 262-6368
POSITION STATEMENT: Testified on HJR 51
DAN PRUITT
Meier's Lake
P.O. Box 142
Gakona, Alaska 99586
Telephone: (907) 822-3968
POSITION STATEMENT: Testified on HJR 51
BILL LEONARD
P.O. Box 336
Gakona, Alaska 99586
(907) 822-3664
Telephone: (907) 822-3664
POSITION STATEMENT: Testified on HJR 51
JOHN WITTEVEEN
4844 Rezanof Drive
Kodiak, Alaska 99615
Telephone: (907) 486-6307
POSITION STATEMENT: Testified on HJR 51
L. ALAN LEMASTER
P.O. Box 222
Gakona, Alaska 99588
Telephone: (907) 822-3664
POSITION STATEMENT: Testified on HJR 51
JOE HAGER
P.O. Box 11
Soldotna, Alaska 99669
Telephone: (907) 262-1575
POSITION STATEMENT: Testified on HJR 51
ACTION NARRATIVE
MEL ERICKSON, Vice President
Kenai River Guides
P.O. Box 1127
Soldotna, Alaska
Telephone: (907) 262-2980
POSITION STATEMENT: Testified on HJR 51
DAVE JONES
Address Unavailable
Telephone: (907) 486-6360
POSITION STATEMENT: Testified on HJR 51
DONALD WESTLUND
Box 7883
Ketchikan, Alaska 99901
Telephone: (907) 225-9319
POSITION STATEMENT: Testified on HJR 51
ANDREW SZCZESNY
(Address unavailable)
POSITION STATEMENT: Testified on HJR 51
JOE HAINES
(Address unavailable)
POSITION STATEMENT: Testified on HJR 51
RUEBEN HANKE
(Address unavailable)
Telephone: (907) 283-4618
POSITION STATEMENT: Testified on HJR 51
JEFF LOGAN, Legislative Assistant to Representative Green
Alaska State Legislature
State Capitol, Room 24
Juneau, Alaska 99801-1182
Telephone: (907) 465-4931
POSITION STATEMENT: Testified on HJR 51
JACK CHENOWETH, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Testified on HB 368
TAPE 96-38, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:10 p.m. Members present at the call to order were
Representatives Green, Bunde, Toohey and Vezey. Representative
Finkelstein arrived at 1:11 p.m. and Representative Davis arrived
at 1:15 p.m.
HB 339 - PRISON & TERMINATION OF PARENTAL RIGHTS
CHAIRMAN PORTER noted that there were five bills before the
committee for consideration as follows: HB 339, HB 387, HJR 51, HB
368 and HB 443, the latter of which would not be heard. He
summarized concerns regarding HB 339 and the proposed changes to
this legislation. There were two provisions in this legislation,
the first sought to provide specifics which the state and the
courts could consider for the termination of parental rights, the
fact that the parent was incarcerated. The second provision dealt
with changing the entire scope of determining whether or not
parental rights should be terminated and the language which
addressed this more specifically "willing and able," by adding the
word able. This second section was completely deleted from the
committee substitute. The legislation before the committee merely
purports to do what the original intent was and that is to consider
incarceration of a parent when assessing parental rights.
Number 222
REPRESENTATIVE NORMAN ROKEBERG stated that this was a fair
characterization of where the legislation stood and he complimented
the Chairman for his concise description. He than asked for the
committee's consideration and support of CSHB 339 version (R).
Representative Rokeberg also added that the deleted portion as
noted would be considered separately.
Number 311
LIZ DODD, Esq., American Civil Liberties Union (ACLU), Alaska
Chapter testified on CSHB 339 version (R). She referred to page 5
of the Public Defender's memorandum which proposed that three
paragraphs from a prior version of the legislation be included in
the present version (R) in order to narrow the scope of determining
parental rights. The ACLU felt that the period of incarceration
imposed should include a significant portion of the child's
minority. The present bill is very broad on this note and allows
for a lot of discretion. By putting this section in it would
narrow this intent to minority children and accomplish the stated
purpose.
MS. DODD continued by stating that the section the ACLU would like
put back in this legislation is the clause that the parent has to
have failed to make adequate provisions for the care of the child
during the period of incarceration. She felt as though the parent
should have this right. Ms. Dodd noted that if this bill does get
passed the ACLU would like an additional paragraph drafted by the
Public Defender's Agency which would allow a judge some discretion
to retain some residual parental rights to the parent when the
termination takes place, such as visitation, for example.
MS. DODD noted some general concerns about the bill. She wondered
about the applicability of it in terms of a person incarcerated in
Lemon Creek and their child is in the custody of a grandparent. If
the grandmother dies, can parental rights be lost under this
scenario in this ex post facto way. Once this legislation goes
into effect will someone already incarcerated come under the
jurisdiction of this legislation.
MS. DODD also wondered if this legislation would have an impact on
sentencing. It's such a severe act to have a child taken away, how
would judges interact with this. Would they be less willing to
impose a stricter sentence under these circumstances.
Number 627
REPRESENTATIVE JOSEPH GREEN inquired as to whether or not Ms. Dodd
was suggesting in section 3 of the Public Defender's memorandum
about a child's minority if parental rights were terminated would
this be applicable from the time the person is incarcerated and
their child is ten years old, for example. Would the incarceration
from the time the bill be passed mean that this termination would
be in effect until this child becomes an adult, or would the ten
years of the child's prior life before this bill was passed be
included. He asked what they were talking about in regards to
defining a child's life. Would this include from the time the
child was born or from the time this bill goes into effect or for
the time this person is incarcerated.
MS. DODD said she assumed it would be the significant term of the
child's life and their remaining minority. At least the language
which she proposed would narrow this time period considerably.
Number 785
DIRK NELSON, American Civil Liberties Union, testified by
teleconference from Valdez regarding CSHB 339 version (R). Mr.
Nelson echoed Ms. Dodd's concerns and said the Division of Youth
and Family Services (DYFS) on the surface was a good concept, but
individual social workers and attorney generals cannot be trusted
with this type of authority and power. He cited the history as to
why incarceration has not been considered before when terminating
parental rights, the concept of double jeopardy for one.
MR. NELSON summarized by stating that he didn't think this bill was
constitutional and he doesn't believe that the relationship between
a child and parent should be brought to an end by a third party
because of an incarceration.
Number 973
REPRESENTATIVE CYNTHIA TOOHEY made a motion to adopt CSHB 339
version (R) as the committee's working draft. There being no
objection the motion so passed.
REPRESENTATIVE CON BUNDE noted the suggestion that language should
be added to specify more clearly the terms of a child's minority
when considering the termination of parental rights.
REPRESENTATIVE ROKEBERG offered that the definition by law of a
child is a minor and a minor is a child.
REPRESENTATIVE BUNDE stated that it should be taken into account
how much longer a child is going to be a minor, how large a portion
of a child's minority the incarceration would include.
Number 1080
CHAIRMAN PORTER spoke to the notion of including language to
reflect this concept. He was concerned about this concept because
it would require that there be a substantial sentence applied
before a termination would be considered. It would eliminate the
ability of the court to consider frequent short sentences which
cause these same types of problems in a child's life. Especially
due to alcohol, people cycle in and out of jail houses for years.
These types of cycles can cause considerable problems. Chairman
Porter also addressed one of the other issues raised by Ms. Dodd
about a judge not wanting to institute a sufficient sentence based
on a minority child's future, he thought that one way around this
would be to not include this type of provision so that no matter
what the sentence is, termination of parental rights should be
considered.
REPRESENTATIVE ROKEBERG stated that he agreed with this perspective
and added that trying to establish some sort of mathematical
equation or another standard would take away any discretion a judge
could have.
Number 1170
REPRESENTATIVE DAVID FINKELSTEIN offered an amendment number 1 to
CSHB 339 version (R) which read as follows:
"(A) If parental rights are terminated under this section due to
incarceration, the court shall also make a specific finding
concerning what residual parental rights are in the best interests
of the child and should be retained by the parent whose rights are
terminated."
He stated that this amendment would require that a specific finding
be included on any residual parental rights. It doesn't say what
those would be and all options would remain available.
REPRESENTATIVE ROKEBERG stated that he opposed the amendment
because this was precisely why he introduced the bill.
Number 1300
CHAIRMAN PORTER requested a roll call vote. Representatives
Finkelstein and Davis voted yes. Representatives Green, Bunde,
Toohey, Vezey and Porter voted no. The amendment number 1 failed.
Number 1285
REPRESENTATIVE AL VEZEY commended Representative Rokeberg for
working on this legislation. It was a difficult issue and he was
presently torn on this bill and was not certain how he would vote
if it was brought to the floor.
REPRESENTATIVE TOOHEY stated she too commended this legislation.
Some of her colleges felt as though this bill benefited older
children, but she felt as though it's stated purpose was for
infants. She felt this legislation was important for a child in
need. Representative Toohey then made a motion to move CSHB 339
version (R) from the House Judiciary Committee with individual
recommendations and a zero fiscal note. There being no objection
it was so moved.
HB 387 - JUVENILE CODE REVISION
Number 1400
REPRESENTATIVE PETE KELLY came forward to testify as sponsor to HB
387. He stated that this legislation probably seemed more
complicated than it really was just due to it's length. HB 387
does not address issues of confidentiality or serious felony
crimes. It does not increase penalties for entry level crimes and
it no longer addresses entry level criminal activity as it did in
it's original form.
REPRESENTATIVE KELLY stated that what this legislation does do is
it splits the juvenile code into two parts effectively and into a
residual third part. One side of the code deals with how the state
will handle delinquent children, how it will deal with children in
need of aid and then those portions of statute which apply to both
for the department's purposes. The child in need of aid statutes
are currently found in AS 47.10.00 which exists much the same as it
has in the past. This legislation creates a new chapter 12 which
will deal with delinquent children and chapter 14 would be the
portion of the statute which deals with both.
REPRESENTATIVE KELLY noted that in the past one of the difficulties
in addressing juvenile crime is the "child in need of aid" and
juvenile delinquents were mixed in statute. It was difficult for
the courts and the department to adequately carry out their goals
of helping children and dealing with juvenile crime. To split the
code, Representative Kelly essentially listed AS 47.10, the "child
in need of aid" section and then removed all the portions which
dealt with delinquency, placed it in AS 47.12 and then rewrote the
delinquent section with some policy changes. There are few policy
changes in this bill.
REPRESENTATIVE KELLY stated that the original, cumbersome language
regarding truancy was stripped from the existing code and the new
language essentially provides for the local school district to deal
with truancy. This legislation also has a section dealing with
curfew. It does not establish a statewide curfew, but puts the
ability to establish a curfew in title 29.
REPRESENTATIVE KELLY offered that as part of the policy changes he
referred to with splitting the code, he thought it was appropriate
that new language be drafted to define what a delinquent was. This
gives the department policy direction on how they will deal with
delinquent crime. He referenced page 23 and 34 as encompassing
these noted sections. Representative Kelly quoted text regarding
the purpose of the chapter as follows:
"The protection of the public and reformation of the offender. To
provide for the most common offenses committed by minors,
resolution should require some form of sanction, that the sanction
should be certain, swift and may take the form of a reasonable
claim on the time and talent of the minor who has committed the
offense; To provide that counseling provided to the minor should
include the minors's family or guardian, that the minor's family or
guardian has the right to offer suggestions and to make
recommendations for the correction of the minor's behavior and that
the minor's family or guardian maybe asked to participate in the
supervision of the minor's treatment."
He stated that this may sound very obvious, but it is simply not in
code right now how they will deal with juvenile delinquents.
REPRESENTATIVE KELLY stated that current law makes very brief
mention of how the courts will deal in sentencing juvenile
delinquents, "it shall consider the best interests of the child and
the public." This was probably appropriate language when juvenile
delinquents and children in need of aid were lumped together, but
having made this split it was necessary to provide language which
better gives the courts direction. On page 34, line 4, he quoted
this language as written in the present form of HB 387.
Representative Kelly stated that this legislation was a great
working tool and for the established Youth Conference. He felt as
though it gave a tool to all the juvenile legislation which has
been formulated in the present legislative body and a tool to
accommodate these other provisions.
Number 1815
L. DIANE WORLEY, Director, Division of Family & Youth Services,
Department of Health & Social Services testified that the
department does support this bill. For the record, she stated that
they'd like to extend their appreciation to Representative Kelly
and Bruce Campbell for all their hard work. The department felt as
though this legislation would assist them as they move forward in
the potential rewrite of the juvenile code.
Number 1973
ANNE CARPENETI, Assistant Attorney General, Department of Law,
testified that she just received the new committee substitute
yesterday and was only able to get half-way through it. She stated
that this legislation represented a lot of work. The idea of
splitting Title 47 into two parts is a good idea, although it's
very hard to do. Ms. Carpeneti noted that there are sections which
still need to be fixed and gave the committee examples of these
problems. It was determined that the majority of these were
technical in nature. She offered that the more substantive changes
suggested were supported by the Department of Law.
CHAIRMAN PORTER asked Ms. Carpeneti if these existing concerns
could be put in an amendment which could be brought to the floor,
especially if they were technical in nature. He suggested she
review the legislation further and if she came up with substantive
problems she could work it out with the sponsor. It was decided
that she would review the remaining sections of this legislation
and work to make any additional changes to be presented on the
floor.
TAPE 96-38, SIDE B
Number 087
REPRESENTATIVE BUNDE made a motion to move CSHB 387 version (W)
from the House Judiciary Committee with individual recommendations
and attached fiscal notes as not amended. There being no objection
it was so moved.
HJR 51 - SPORT FISHING GUIDE LIMITED ENTRY
Number 130
REPRESENTATIVE GREEN presented the House Joint Resolution 51 which
provides for a clarification regarding the mixed signals from the
court that says the state is not restricted from limiting the entry
of a fishery. The language as is now enumerated in state statute
covers sport fish guiding, as well as, commercial guiding. It has
been rendered that commercial guides can be limited and there is
some legal opinion which says that this applies to sport fishing as
well. Others say that this won't stand muster and that some
clarification must be outlined. This resolution adds the
description that sport fish guiding as a profession is one that the
state is not restricted from limiting on a limited entry basis.
Number 202
GARY HULL testified by teleconference from Kenai. He stated that
he was in favor of HJR 51 and noted a real need for limited entry
on the amount of guides, especially in certain areas such as the
Kenai. He noted that there are probably areas which don't need
regulation at this time. Mr. Hull urged this resolution be placed
on the ballot.
Number 246
JAMES FITZGERALD testified by teleconference from Kenai. He stated
that he wasn't a guide, but his wife was. They both agree that
something should be done with the guide situation, especially on
the Kenai in July. The only thing they do ask is that if a number
of guides is set, to do so by attrition, rather than on an
arbitrary basis. This way it would be fair to the people who are
guiding now.
Number 285
DAN PRUITT, testified from Meier's Lake by teleconference.
(Testimony inaudible.)
Number 340
BILL LEONARD testified by teleconference from Gakona. He asked
who and how will it be determined the amount of guides on which
river.
REPRESENTATIVE GREEN noted that this would be instituted by the
Department of Fish & Game. Based on the resource and the number of
guides available this would be done on a basis (inaudible -
coughing) commercial fishing too.
Number 365
REPRESENTATIVE VEZEY said that it was his interpretation that
before this program could implemented there would have to be a
statute passed and the department would probably have to implement
regulations.
CHAIRMAN PORTER stated that what would happen after the
constitution was amended is a statute would have to be written that
would either merely give Fish & Game the authority to write
regulations to determine how, where and when, or the statute could
try to get into some policy making in this area depending on the
will of the legislature at that time.
JOHN WITTEVEEN testified by teleconference from Kodiak. He stated
that he owned a lodge on Kodiak and with this business he runs a
charter boat operation. The allocation problem continues to
persist with the Kenai River and it's related areas, as well as,
places in Southeast Alaska for charter boat operators and fishing
guides. He said he would hate to see a limitation on the number of
guiding operations, whether charter or river fishing implemented
all over the entire state for a problem which perhaps exists in
isolated areas. If indeed the concern is resource management, he
felt as though Fish & Game has the option now if the resource is
threatened to either close seasons or limit catches in order to
conserve this resource.
MR. WITTEVEEN noted that he employs a sixteen year old helper who
presently has a sport fishing guide license. He is very good at
what he does and Mr. Witteveen imagines that this helper will want
to get into this field on a more permanent basis, yet the classic
limited entry system in place for salmon such as for commercial
would limit his ability to participate. He noted that the sport
fishing business is not a lucrative profession. He felt that
certain areas in Alaska, Kodiak particularly where the other
commercial fisheries are on a decline or limited on a certain
basis, people are looking for other opportunities, such as eco-
touring or guiding kayaks or bear viewing, etc. He didn't see how
sport fish guiding could be singled out on a blanket, statewide
basis just because of problems in some areas of the state.
Number 570
REPRESENTATIVE TOOHEY stated that she was around when limited entry
was instituted to the crabbing industry statewide in the 60's. She
felt then and now that this was a very "un-American" attitude to
limit something that is free for everybody. She felt as though
this was private enterprise that they were stepping on. She used
the analogy of a dress shop and limiting one in a town where there
are already too many dress shops. She stated that this was the
whole purpose of free enterprize. Somebody is going to loose their
shirt because there are too many guides on a river. This is the
way it's suppose to work. She said she could just see what will
happen. If the constitution is changed and this fishery becomes
worth millions of dollars. She stated that we have screwed up the
fishing industry so badly in this state now. This is not the
government's job, to limit businesses.
Number 636
REPRESENTATIVE GREEN spoke to one portion of Representative
Toohey's comments. He noted that this legislation was not about
limiting free enterprize. This was to protect the fisheries
resource. If this legislation passes, Fish & Game would then,
based on the ability to maintain the resource, implement the same
type of program as for commercial fishing.
CHAIRMAN PORTER stated that he saw a difference between the
regulation of commercial fishing and this legislation. "What an
analogy would be, would be, some guide to go show a commercial
fisherman where to fish because he has the ability to go fish
because he's either got a permit or will be fishing within the
limits of the area. Same thing with a sports fisherman. They have
to get a license and they have to abide by the regulations of how
many they take, and all that kind of stuff. This is a new 'cat,'
this is a guide for that. So I don't see this as a resource
protection. Maybe I'm missing something."
REPRESENTATIVE GREEN made a point that if guides are any good they
are going to know how to extract the resource far better than the
average fisherman. As these proliferate the resource is adversely
affected. This is why the committee has heard from problem areas.
There are certain fisheries where this regulation is definitely
needed.
Number 762
L. ALAN LEMASTER testified by teleconference from Gakona. By
limiting the number of guides on a river, the amount of people
fishing with these guides will be limited. However, the people who
are not fishing with guides are not limited in any way. On an
average day on the Gakona River there are many times where there
are more people fishing without guides than ones with guides.
These guideless fisherman do catch as many fish as those with. He
didn't think that limiting the number of guides will limit the
pressure on the fish, but will change the way people fish.
MR. LEMASTER said he had a problem with the next step of the
process if this legislation were to pass. In order to implement
this policy a statute would spell out the regulations or this right
would be given to the Department of Fish & Game. Mr. Lemaster is
in the lodge business and as a result he deals directly on several
levels with the Department of Environmental Conservation. A few
years ago this department was given the jurisdiction over user
fees. During those hearings he only heard of maybe two witnesses
in support of user fees. Virtually everyone testified against this
concept, but because it was a regulatory issue, now they have user
fees coming out of their ears.
MR. LEMASTER said he supports the concept of regulating guides
because eventually this profession will have to be limited if
anyone is going to make any money. However, if it is determined by
the people of the state that they want limited entry he strongly
suggested that the rules for this program should be spelled out
very specifically by the legislature. "I can't fire anybody who
works for Fish & Game, but I can sure help fire the guys that work
for the legislature if they pass rules that are detrimental to my
business." The regulatory agencies go 'nuts' when given
regulations to implement.
Number 991
JOE HAGER testified by teleconference from Kenai. He stated that
he'd been a guide on the Kenai River since 1978. At that time
there were 38 guides on the river. The parks took over the system
in 1985. At that time they registered 183 guides. As of last year
there were 314 guides that registered to fish on the Kenai River.
He felt as though other guides around the state will eventually see
the influx to their businesses as well. Mr. Hager felt as though
they were going to have to cap this off because it's getting too
congested on the river and it's not a good business.
Number 1066
MEL ERICKSON, Vice-President, Kenai River Guides Association and
Member, Deep Creek Fishing Charter Boat Association testified by
teleconference from Kenai. He stated that he had guided in both
these areas for about eight years. Mr. Erickson stated his support
for HJR 51. This regulatory system for sport fish doesn't
necessarily have to take place in the whole state, but maybe in
just those areas which need the program presently. He said he had
just returned from the Board of Fish meetings in Anchorage. The
board just put more restrictions on guides in the Deep Creek area
because of the increase in angler catches there. The escapement
there is being affected.
MR. ERICKSON stated that the Fish Board had asked guides during
public testimony about ways to limit the amount of people who fish
the Kenai since they have no authority to limit guides. He felt
that if some limitations were not made soon that the Parks
Department would do so maybe through a lottery or competitive bid,
which would be much worse than some sort of limited entry proposed
by HJR 51. He felt as though it would be a good idea to propose an
amendment to this resolution which would state that limitation
could not be implemented without a specific plan approved by the
legislature. Mr. Erickson also suggested an amendment that would
call for a moratorium that would cap at the 1995 level of guides
since it will a few years before this program can be implemented.
Number 1276
DAVE JONES testified by teleconference from Kodiak. He stated that
he owned a lodge on Kodiak Island. He said that he was not
necessarily opposed to HJR 51, but he had a lot of concerns about
it and noted that it might be appropriate in hot spots around the
state. Mr. Jones said that this measure was not necessary in his
area. In regards to how this legislation will be implemented he
had a lot of reservations about this juncture.
Number 1347
DONALD WESTLUND testified by teleconference from Ketchikan. He
stated that he had one question. He asked if the concept of
limited entry would follow the limited entry language as it is
written right now for commercial fishing.
CHAIRMAN PORTER stated that this language was written now and they
would not be able to guess what a new legislature would want to
create as policy.
MR. WESTLUND said that if this legislation passes it will create
management problems. The only way that they can implement this
limited entry is to admit that their policies towards the sport
catch is problematic from a resource management perspective.
Number 1570
ANDREW SZCZESNY testified by teleconference from Kenai. He stated
that he's been a guide on the Kenai River for 12 years. Every time
there is a concern about overcrowding, the guides seem to take the
blame for this. He noted that if there isn't a cap placed on the
number of guides now the resource won't be able to recover. At
this time he has a special use permit on the upper Kenai River
which is regulated by the federal government. He is one of 20
people who have this permit up there. The problem with this system
is the influx who use this section of the river which is getting
out of control, but if asked what the problem is, the government
says there are too many guides on the river. The lower 48 has had
problems with a number of rivers there and they've had to implement
restrictions. It's time Alaska recognizes a need for these
restrictions on the Kenai.
Number 1682
JOE HAINES, President, Kenai River Guide Association testified by
teleconference from Kenai. He made a plea to the other guides
listening around the state that this effort would be a tool used by
local advisory people or the guide associations in an immediate
area, although it has to be implemented on a statewide basis. He
used the example of the commercial fishery limited entry and it not
being applied to those areas which don't need it. Secondly, he
stated that he'd just come back from the Board of Fish meeting and
said it was unbelievable the general consensus that this program
should be established, but nobody could understand why it wasn't
happening. In response to Representative Toohey's comments, he
felt they were extremely short sighted. He fully supports HJR 51.
Number 1847
CHAIRMAN PORTER asked Mr. Haines if he thought that limited entry
for a sport fishing guide was the same as for a commercial
fisherman.
MR. HAINES answered that limited entry was a stepping stone. He
noted that guided anglers catch 70 percent of the salmon on the
Kenai, although they only make up a quarter of the boats which are
guide boats. He felt as though there would be a time that a non-
resident would be limited to certain days they can fish. He said
that he didn't mind taking the first step as a guide association to
set some of these limits.
Number 1970
CHAIRMAN PORTER asked if the Department of Fish & Game limit the
catch of sport fishing, whether it's guided or not.
MR. HAINES pointed out that sport fishing is not limited due to
allocation, but that a minimum escapement is required. The guides
get blamed for all the regulations generated because people need a
guide to figure them all out. Fish & Game has the latitude, but
information can't be gathered until fish reports come back the
following year. There are many streams where salmon counts aren't
done. He noted the increase in the number of guides just in the
past year and not only are the resource suffering, but the quality
of experience is lacking.
Number 2099
REPRESENTATIVE GREEN added that the Fish & Game does limit the
amount of escapement, but sometimes they miss as noted by closures
of all the fish types in an area. Limiting commercial fishing
doesn't solve the entire problem.
TAPE 96-39, SIDE A
MR. HAINES responded to a question posed by Representative Toohey,
a question which is not reflected in the minutes because of a tape
change. He stated that the Kenai River was the first river to go
to a two fish bag limit. This spread out to the other streams in
the Kenai system. Mr. Haines said that it was his opinion that
this policy should be instituted throughout Cook Inlet. He noted
that five kings was pretty liberal, instead of transferring this
fishing effort and waiting till there are resource problems. He
cited some of the rivers in the lower 48 and the limits instituted
there. Mr. Haines stated that in order to preserve resources
Alaska will have to limit the existing popular fishing areas.
Number 222
RUEBEN HANKE testified by teleconference from Kenai. He said he
was in favor of this resolution. He said it was hard to follow
through on end river restrictions when the number of sport
fisherman are too great. The guides are all trying to make a
living and when a stream closes because of escapement problems,
this is hard one everyone. He said it's also hard to tell clients
on a "trip of their lifetime" that they have to release their fish
under a catch and release policy. Mr. Hanke felt as though this
resolution would create more continuity to the field.
Number 360
MR. LEMASTER from Gakona said he had a few more things to add. He
stated that rules which apply to one area don't always apply to
another. He questioned the basic purpose of this bill, was it is
to limit the number of guides for the benefit of the guides or is
it to limit the catch on the river so it won't be placed in
jeopardy. If it is the latter, he felt as though some credence
should be given to the fact that guides take a limited amount of
fish out of the river. He noted the numbers quoted for the guide
take on the Kenai at 70 percent and stated that there are other
areas where this may be reversed. Mr. Lemaster added that
basically they just need to limit the amount of people on a river.
Number 520
REPRESENTATIVE BUNDE spoke to the issue of limited entry and how
the value of permits for commercial fishing has skyrocketed. He
said he was in favor of limited entry for sport fishing as long as
the state held title to these permits and they would be given back
to the state once a guide finishes with a permit so that a dynasty
won't be created. He also spoke to a grandfathering program to
allow present guides into the system.
Number 719
CHAIRMAN PORTER commented that they have established this as a
three step process, first this issue would go on the ballot to see
if the people want to amend the constitution by subsequent
regulation. For the record, he had concerns about this manner of
limitation. He had concerns on a much broader scope about state
permits and licenses becoming a valuable commodity. At some point
this should be stopped.
Number 788
REPRESENTATIVE FINKELSTEIN felt as though the system of limited
entry is the only thing they are left with as an alternative in the
face of limited resources. He used the example of Denali National
Park and the fact that he's come to accept this as part of this
experience, that it is under a limited entry program. It's the
nature of high interest areas and Alaska needs this tool.
Number 850
REPRESENTATIVE GREEN stated that the fiscal note consisted of
$2,200 as a one time shot for getting this limited entry issue on
the ballot. The amount associated with this issue as a
constitutional amendment should be done as a matter of course
rather than as a special appropriation. He recommended adopting a
zero fiscal note.
Number 941
JEFF LOGAN, Legislative Assistant to Representative Green responded
to a question posed by Representative Toohey to define what a
"closely allied profession" was in regards to this legislation. He
stated that this term was included in the legislation to cover
skippers who were not guides who run a boat, people who bait hooks
for clients, deck hands and others who assist in the guiding
profession who are not guides.
Number 1050
REPRESENTATIVE GREEN made a motion to zero out the attached fiscal
note provided by the Division of Elections as to the cost of the
constitutional amendment. There was an objection. A roll call
vote was taken. Representative Green voted yes. Representatives
Bunde, Toohey, Vezey, Finkelstein and Porter voted no. The
proposed motion failed.
Number 1118
REPRESENTATIVE BUNDE made a motion to move HJR 51 from the House
Judiciary Committee with individual recommendations and attached
fiscal note. Representative Toohey objected. A roll call vote was
taken. Representatives Bunde, Vezey, Finkelstein, Green and Porter
voted yes. Representative Toohey voted no. The motion passed.
HB 368 - ELECTION CAMPAIGN FINANCE REFORM
Number 1158
CHAIRMAN PORTER introduced Jack Chenoweth to make a presentation
regarding HB 368. Mr. Chenoweth came forward.
Number 1165
JACK CHENOWETH, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, presented an overview on how HB 368
was drafted in it's present form. Representative James had asked
at the outset that they prepare a bill based upon the initiative
that was then in circulation and which was subsequently certified
for the November general election ballot. This they did. The
drafting differed from the initiative, but basically covered the
same points. In a hearing before House State Affairs, the
principal sponsor of the initiative, Mr. Mike Frank from Anchorage,
indicated on the record that he thought that the bill as originally
introduced was in fact virtually the same as the initiative. From
this point there was a work committee formed composed of
Representative James, Finkelstein and Senator Tim Kelly who met on
a few occasions. Using materials provided in significant part by
Representative Finkelstein, these consisted of about 30 changes to
the original bill as introduced.
MR. CHENOWETH stated that this work committee made about 30 changes
to the original bill and this was the bulk of the differences
between the original bill as introduced, the initiative, and the
bill as being reported from the State Affairs Committee. The
following sets out the changes undertaken by the committee as
noted.
MR. CHENOWETH said that the initiative included an indexing
requirement which said that at periodic intervals the dollar figure
set in the initiative would be adjusted to reflect changes in the
cost of living. This was taken out of the bill and no longer
appears here. The legal services division read the initiative to
require a registration before making contributions. In point of
fact, the committee opted to eliminate any requirement of
registration before individuals could make contributions. The bill
reflects this portion of the initiative.
MR. CHENOWETH noted that the initiative proposed to reduce cash
contributions from $100 in current law to $25. The committee and
hence, the State Affairs version took this back to current law
restoring the reference to $100. The initiative came down rather
prohibitively on the acceptance of payment to and acceptance of
honoraria by people who are candidates after they have become
candidates. The work committee took this back more in the
direction of current law, allowing some compensation for the giving
of personal services and payment, as well as, receipt of honoraria
by persons who are candidates.
MR. CHENOWETH offered that the initiative set an 11 month period
preceding a general election as the period of time in which
candidates could go out and fund raise. The work committee
substituted for the principle races, statewide and legislative,
fixed dates for statewide elections. For the governor and
lieutenant governor, the initial dates these folks may begin to
raise funds is January 1 of the general election year of which they
are to be elected or re-elected. For legislators it is June 1 of
the general election year in which the legislative seat is
contested, for all others, which is the state's special elections
and municipal elections, the five month window period was left in
place. The result of this was to change the window period, but it
leaves in place the concept as set out in the original initiative,
which is that money raised is in the election year only. Money
cannot be raised in off years.
MR. CHENOWETH stated that the initiative allowed family members to
make loans to candidates. The work committee disallowed this and
the language authorizing loans by family members came out of the
bill. A technical amendment was made which eliminated a provision
in current law which required that when contributions in excess of
$250 be disclosed that a copy of the report filed with the Alaska
Public Offices Commission (APOC) must also be sent to the candidate
receiving the contribution. The work committee conformed the
definition of prohibitive contributions as a drafting matter. The
committee was interested in the authorized uses of surplus uses of
campaign funds. He recalled an initiative which allowed for five
or six ways these funds could be used. The work committee adds to
this disposition in three ways: money can be returned to
contributors on a pro rata basis; some of the surplus money can be
carried forward to be set aside for a subsequent legislative race
or campaign; and a certain amount may be put in a legislative
office account and to be used as a supplement to a current
legislative office allowance.
MR. CHENOWETH noted that the penalty provisions were modified. The
initiative used a sliding scale of civil penalty which drew from
criminal law concepts of criminal culpability and noted notions of
aggravating and mitigating factors. The work committee abandoned
this approach, went back to something which approximates the
current civil penalty arrangement, does allow aggravation in
limited situations, but generally the approach taken in the State
Affairs version comes closer to what is more familiar with in
current law.
MR. CHENOWETH said the initiative drew a definition of political
party out of AS 15.60.00, the election code, and brought it forward
into the campaign financing provisions. The question arose from a
minor party about whether they would be treated as a political
party for purposes of receiving the higher amounts that political
parties could receive as contributions and expenditures. He was
asked to go back and reform the definition so that the definition
of political party so that this minor political party would clearly
qualify as a party and not be restricted to the status of a group.
He noted that in this definition of political party if they ever
got three percent of the vote in a gubernatorial election across
any one of the last five gubernatorial elections, they would
continue to quality as a political party for purposes of this act.
MR. CHENOWETH added that the criminal penalties in the initiative
have been stepped up so that matters which were intentional
violations could be treated and prosecuted as C felonies. The
committee was of the opinion that these penalties should be stepped
down by one step. The most serious penalties in the State Affairs
version are A misdemeanors for intentional violations, B
misdemeanors for knowing violations, and violations for that
category of offense which is punishable by the payment of a fine
for reckless or criminally negligent violations.
MR. CHENOWETH stated that current laws says that expenditures in
excess of $250 made at the close of a campaign have to be reported
within a nine or ten day window period. No one reports
expenditures, they report the contributions. This bill makes the
change to delete the reference to expenditures, but contributions
would have to be reported. The statement by contributor
requirement was revised to limit it to individuals. The "paid for
by" requirement was modified in two places based upon a U.S.
supreme court decision about a year ago which carved out an
exception for the "paid for by" requirement for independent
campaign related expenditures that had to do with propositions or
questions. Small amounts which cumulatively did not exceed $250 a
year were exempted from the "paid for by" requirement in the State
Affairs Committee version. The initiative drew the term "publicly
funded entity" in without supplying a definition. He was asked to
provide one and he did so.
MR. CHENOWETH outlined that the State Affairs version picked up on
a request that the definition of a control group has to have in
it's name, the name of the individual candidate for or against whom
this control group is working, now says that the group has to have
50 percent or more of it's expenditures directed towards this end.
They made an amendment in the State Affairs version that drops this
down to thirty three and a third percent. He was told that the
Public Office of Commission would like to see this taken back to
current law. As this legislation came from State Affairs, this
change is in there.
MR. CHENOWETH said that they have tried to work through and include
in the State Affairs version a definition or statement of the
relationship between a political party and subordinate units,
groups such as district parties and group which come in and ask to
be affiliated with the main political parties. They had a
discussion on two occasions in the work committee and brought this
type of statement into the bill.
MR. CHENOWETH noted that as mentioned earlier, the disclaimer
provision has been amended to reflect the decision of the U.S.
Supreme Court in the MacIntyre decision. The effective date from
the initiative has changed so that the entire bill would become
effective January 1, 1997. There is in the bill, but not in the
original initiative a provision which bars the use of charitable
gaming proceeds to support political activities under Section 2 of
this bill. The original initiative barred use of money from out-
of-state sources. This bill allows it within strict limits so that
there can be limited acceptance of money from non-residence in
statewide, state Senate, and state House races. The maximum amount
that a political party may contribute to a candidate is increased
over the amount set in the initiative. The amount that a group can
contribute to a candidate which was a $1000 dollars in current form
was reduced in the initiative and was taken back to $1000 dollars
in the State Affairs version. Groups are not permitted in the
initiative to give to other groups. The State Affairs version
lifts this prohibition to allow groups to make these contributions
to other groups to a maximum of a $1000. After some discussion,
the bill incorporated a provision that limits the governor and
lieutenant governor from raising election campaign funds during the
legislative session. They have in place something which says that
they may raise money while the session in progress.
MR. CHENOWETH noted that they overhauled the litigation provision.
The initiative allowed that the taxpayer who wanted to challenge a
candidate could go to one of two forums, the Alaska Public Offices
Commission or to court. They revised this to eliminate the
automatic chance of going to court unless the APOC is first
addressed in the form of a complaint and given 60 days to work
through the situation and to come to some preliminary step. If
they don't get this far within the 60 days, only then can someone
go to court. The object of this was to prevent last minute filings
in court which gain a lot of publicity, but would still not cut off
the right of access if the APOC drags it's feet.
MR. CHENOWETH offered that current laws states that if someone says
at the outset that they are going to run and not raise or expend
more than $1000 they don't have to worry about disclosure. The
committee has recommended that this amount be raised to $2500. A
severability provision which appeared in the initiative, but which
they took out in the initial drafting because the general
severability clause that attaches presumably to all bills under
Title 1, Senator Kelly asked that it be put back in this bill as it
appears. In addition, in the current draft a clause was enumerated
that says that this bill and the initiative cannot both take
effect. The idea being, that if the lieutenant governor says that
the bill and initiative are substantially the same, the initiative
does not go on the ballot and hence this bill becomes law. If the
lieutenant governor says that this bill and the initiative are not
substantially the same, the initiative alone goes before the
voters. This does not become law. The idea is that if one is
dropped one on top of the other, there will be quite a mess to sort
out for 1997.
Number 2000
CO-CHAIRMAN GREEN adjourned the meeting at 3:02 p.m.
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