04/09/2001 01:15 PM House RES

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* first hearing in first committee of referral
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ALASKA STATE LEGISLATURE HOUSE RESOURCES STANDING COMMITTEE April 9, 2001 1:15 p.m. MEMBERS PRESENT Representative Beverly Masek, Co-Chair Representative Drew Scalzi, Co-Chair Representative Joe Green Representative Mike Chenault Representative Lesil McGuire Representative Gary Stevens Representative Mary Kapsner Representative Beth Kerttula MEMBERS ABSENT Representative Hugh Fate, Vice Chair COMMITTEE CALENDAR CS FOR SENATE BILL NO. 60(JUD) am "An Act relating to agricultural facilities and operations as private nuisances; and to disclosures in transfers of certain real property located within the vicinity of an agricultural facility or an agricultural operation." - MOVED HCS CSSB 60(RES) OUT OF COMMITTEE CONFIRMATION HEARING Commercial Fisheries Entry Commission Bruce Twomley - Juneau - CONFIRMATION ADVANCED HOUSE BILL NO. 216 "An Act relating to the emergency order authority of the commissioner of fish and game and to meetings of the Board of Fisheries." - MOVED CSHB 216(RES) OUT OF COMMITTEE HOUSE BILL NO. 82 "An Act relating to agricultural facilities and operations as private nuisances; and to disclosures in transfers of real property located within one mile of an agricultural facility or an agricultural operation." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 222 "An Act relating to annual rental fees for mining claims." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 206 "An Act relating to a vessel-based commercial fisheries limited entry system, to management of offshore fisheries, and to the definition of 'person' for purposes of the commercial fisheries entry program; and providing for an effective date." - SCHEDULED BUT NOT HEARD PREVIOUS ACTION BILL: SB 60 SHORT TITLE:FARM OPERATIONS:DISCLOSURE /NUISANCES SPONSOR(S): SENATOR(S) GREEN Jrn-Date Jrn-Page Action 01/30/01 0221 (S) READ THE FIRST TIME - REFERRALS

01/30/01 0221 (S) JUD Committee MINUTE(JUD) THERRIAULT UNAN CONSENT RECONSIDERATION 203 READING UNAN CONSENT LEGISLATION READING N2 E1 REFERRALS BILL: HB SHORT TITLE:BD OF FISHERIES MEETINGS/EMERGENCY ORDERS SPONSOR(S): RESOURCES Jrn-Date Jrn-Page Action REFERRALS MINUTE(RES) WITNESS REGISTER HANS NEIDIG, Staff to Senator Lyda Green Alaska State Legislature Capitol Building, Room 125 Juneau, Alaska 99801 POSITION STATEMENT: Spoke on behalf of Senator Green, sponsor of SB 60. PETER FELLMAN, Staff to Representative John Harris Alaska State Legislature Capitol Building, Room 513 Juneau, Alaska 99801 POSITION STATEMENT: On behalf of Representative Harris, sponsor of HB regarding SB 60. WAYNE REGELIN, Director Division of Wildlife Conservation Alaska Department of Fish & Game (ADF&G) PO Box 25526 Juneau, Alaska 99802-5526 POSITION STATEMENT: Testified regarding BRUCE TWOMLEY, Appointee to the Commercial Fisheries Entry Commission PO Box 020972 Juneau, Alaska 99802-0972 POSITION STATEMENT: Testified as appointee to the Commercial Fisheries Entry Commission. JIM COLIER PO Box 966 Wrangell, Alaska 99929 POSITION STATEMENT: Testified regarding Bruce Twomley, appointee to the Commercial Fisheries Entry Commission. LANCE NELSON, Assistant Attorney General Natural Resources Section Civil Division (Anchorage) Department of Law Anchorage, Alaska 99501-1994 POSITION STATEMENT: Commented on ACTION NARRATIVE TAPE 01-31, SIDE A Number 0001 CO-CHAIR BEVERLY MASEK called the House Resources Standing Committee meeting to order at 1:15 p.m. Members present at the call to order were Representatives Masek, Scalzi, McGuire, Green, Chenault, Stevens, Kapsner, and Kerttula. SB [Contains discussion of SB Committee, and that [the language in question] is a good addition. Number 2291 REPRESENTATIVE STEVENS said he appreciated [Amendment 2] and was going to vote for it, but was frustrated that no one from the Senate was present to "defend what they have done." He said committee members had been placed in a position of voting for something that no one had defended to them. REPRESENTATIVE KERTTULA, in response to a comment by Co-Chair Masek, clarified that [Amendment 2] related to only the language "manufacturing, or processing", not the entire line. Number 2359 MR. FELLMAN commented that if person who has property with trees on it would be protected, under current law, to cut those trees down, but not to take them to a sawmill to make something useful for the farm. His concern is that people would be piling wood and burning it, instead of running it through a sawmill and using it as a "processed product." A person whose neighbor complained about sawdust on the road wouldn't be covered against a nuisance lawsuit. Mr. Fellman said it is imperative to allow people who have purchased those trees along with their land to make a useful product out of them. He offered his personal belief that the language put in by the Senate is good language that he hopes will remain. REPRESENTATIVE STEVENS expressed appreciation for Mr. Fellman's comment regarding use of timber on a person's own land. Number 2454 CO-CHAIR called a brief at-ease at 1:55 p.m. She called the meeting back to order at 2:07 p.m. A roll call vote was taken. Representatives Kapsner and Kerttula voted for Amendment 2. Representatives Chenault, McGuire, Stevens, Masek, and Scalzi voted against it. Therefore, Amendment 2 failed by a vote of 2-5. Number 2526 REPRESENTATIVE KERTTULA made a motion to adopt Amendment 3, a handwritten amendment which read [original punctuation provided]: SB 60 p.2, Line 16 delete: ", or that is used in aquatic farming" [An additional handwritten amendment on the same handout, never addressed by the committee, was to delete "(ix) aquatic farming;" from page 3, line 6, and renumber accordingly.] CO-CHAIR MASEK objected to Amendment 3. REPRESENTATIVE KERTTULA explained that fish farming is not allowed in [Alaska]. Nor is this part of anything contemplated by either [Alaska's] the original Right-to-Farm law or the right-to-farm laws she has looked at with regard to other states; she surmised it might exist in states that allow finfish farming, however. She pointed out a further complication: one addition to the law at this point is that an agricultural operation won't be a nuisance, regardless of subsequent expansion of the facility; therefore, a person could have a very small site expand into something that is "huge." Number 2584 CO-CHAIR SCALZI spoke against the amendment, noting that "we" had just gone through considerable public condemnation of expanding the aquatic farming in Kachemak Bay, and are currently dealing with a mariculture issue in Southeast [Alaska]. He said he thought it was appropriate that ["aquatic farming"] was included in the bill. CO-CHAIR SCALZI agreed finfish farming does not exist in Alaska and that salmon farming is against the law. However, he said he "tends to think" about the mariculture and shellfish farming. For example, he is aware of approximately 14 farm sites in Kachemak Bay that could use protection because of the pressure that exists to remove them. CO-CHAIR SCALZI concurred, however, with Representative Kerttula's concern about expansion. He referred to page 1, line subsequent expansion". He said it added, however, that a farm could not be expanded without the concurrence of DNR and ADF&G. Number 2653 REPRESENTATIVE KERTTULA responded: I really hear those concerns, and I think that they're well taken, but this is really [an] inappropriate vehicle for them. ... They're under separate statutes, but now you're starting to call them an agricultural operation. And it really is mixing apples and oranges, not to mention fish, and trees, and things like that. So ... I'd be real open to working on that or getting legislation drafted; I just think they don't belong in this particular piece of legislation. Number 2688 CO-CHAIR SCALZI said he appreciated Representative Kerttula's remarks, and in some regards he wished there were [other legislation]. On the other hand, he stated the following: I think that mariculture is certainly an agricultural industry, and that it's a very viable one. And I can speak very clearly to the pressure that's put on ... mariculture farms in the bay right now, because there was a loud vocal majority that banned jet skis in the bay, also, and personal watercraft, and ... it was something that I thought, "This is the kind of thing that they need protection against." All of a sudden, you have an influx of individuals who say that, for no biological reason, they want to ban something; the numbers are there to boot them out. And I think that this does offer some protection to those individuals who have invested a lot of money and time in an operation that I certainly do consider along the agricultural lines. So, I respectfully disagree. Number 2735 REPRESENTATIVE McGUIRE noted that she chairs the [Administrative] Regulatory Review Committee, and aquatic farming is a central issue. She told Representative Kerttula she has high regard for her. She indicated aquatic farming is alive and well, however, and referenced the Aquatic Farming Act [not made available in committee packet]. Representative McGuire said, "We do need to start to think about them as a unit." REPRESENTATIVE McGUIRE offered her belief that [aquatic farming] is a viable part of agriculture, and that inserting it into this legislation gives that concept a strong recognition. She added that it is different from a fish farm. She spoke of potential, noting that Canada and Washington State have diversified their economies through the development of aquatic farming. She concluded that it is a "valuable part" that should be reflected in "this overarching bill relating to agriculture." Number 2820 MR. FELLMAN responded that there was a time when there was no rabbit farming or fox farming. Excluding the farming of sea urchins, for example, would cut off part of the industry. He emphasized the need to keep aquaculture in the bill. A roll call vote was taken. Representatives Kapsner and Kerttula voted for Amendment 3. Representatives Chenault, McGuire, Stevens, Masek, and Scalzi voted against it. Therefore, Amendment 3 failed by a vote of 2-5. Number 2900 REPRESENTATIVE KERTTULA offered that she had spoken with the House sponsor and knows the intent is to protect farms, whether aquatic or land-based, from encroachment now. CO-CHAIR MASEK thanked Representative Kerttula but reminded her that the bill under discussion was the Senate version. Number 2950 REPRESENTATIVE McGUIRE moved to report 60(JUD) am voted against it. [A small portion was not on the tape, but a written role call sheet recorded the votes.] Therefore, HCS CSSB Committee by a vote of 5-2. [Co-Chair Masek turned the gavel over to Co-Chair Scalzi.] CONFIRMATION HEARING Commercial Fisheries Entry Commission TAPE 01-31, SIDE B Number 2965 CO-CHAIR SCALZI brought before the committee the confirmation of the appointment to the Commercial Fisheries Entry Commission of Bruce Twomley. Number 2905 BRUCE TWOMLEY, Appointee to the Commercial Fisheries Entry Commission (CFEC), came before the committee. He stated that he knew most of the committee members and had had the privilege of working with some of them. He would not take up time with a statement, but would welcome questions from the committee. Number 2875 REPRESENTATIVE KAPSNER stated that she wholeheartedly supports Mr. Twomley's nomination. She indicated that she has worked with him for the last two years on a bill. She said she knows Mr. Twomley has helped many people in her region work with the IRS (Internal Revenue Service) to ensure that their boats and permits were not seized, and she greatly appreciates all of his work. Number 2718 REPRESENTATIVE GREEN asked Mr. Twomley about some words out of existing code. From the statute that establishes the commission, he read: "The purpose of this chapter is to promote the conservation and the sustained yield managed by the Alaska's fisheries resources and the economic health of the commercial fishing of Alaska." He asked Mr. Twomley if he accomplished both ends of that. Number 2685 MR. TWOMLEY emphasized that [the Limited Entry] Act provides limited tools; within that authority, he believes the CFEC has done everything possible to serve those goals. He clarified that those stated purposes are the requirements for limiting a fishery; unless [CFEC] can demonstrate, for the record, that one of its limitations will serve those two purposes, [CFEC] cannot undertake a limitation. MR. TWOMLEY, in response to a further question by Representative Green, said [CFEC's] only real authority is to limit the number of participants. Regarding that limitation, in every fishery there's a grandfathering system. Historically, there are always more people eligible to apply for limited entry permits than places available - even though the number of places available is generous because [CFEC] is required by law to make it the highest number of units of gear in one of the last four years before limiting. MR. TWOMLEY explained that [CFEC's] job is to rank the applicants under a point system to ensure that the individuals who most need the available permits get them. His job primarily consists of writing the legal opinions that determine whether somebody gets the permit. MR. TWOMLEY noted that the Act does address adjusting fleet size. He indicated the state supreme court has said that if a fishery becomes too exclusive, more permits must be "added back into the water, by selling them." The Act also calls for a buy- back program, and it addresses the taxing of fishermen to raise the money to buy back permits. He expanded on that: The AG [attorney general] determined, some years ago, that that part of the Act was broken; because it was a dedicated fund, you couldn't raise money in that fashion. ... [It] raised a couple of other questions. That's a fairly fixable element of the Act; but we're in the process of trying to fix that and consulting with fishermen and trying to come up with a proposal. And in the process, the supreme court said, "Wait a minute." [There's] a case called the Johns' (ph) case. ... There's ... a tension in the constitution between all of these open-fishery clauses and the limited entry authorization clause. And in view of that tension, the only way to resolve it is to ensure that limited entry impinges on opened entry as little as possible. ... I think you can see the implications of that holding for an attempt to reduce a fleet size. You could ask the state to spend money, or tax fishermen to spend money [and] buy back a bunch of permits; but at the point that you get to a point where it actually makes a difference - people's lives improve because the economics have improved - you could back yourself into this constitutional issue that could require you to put more permits back into the water. And we don't have a good solution to the problem, and it's made fixing the buy-back portion, I think, an almost insurmountable task. Number 2477 JIM COLIER, testifying via teleconference, stated that he'd spoken to Mr. Twomley, who said he took an oath to uphold the constitution. Mr. Collier said he'd found numerous occasions where "they" have violated the constitution. He expressed his belief that it is not right that he should have to take him into court because he violates the constitution, when he already took an oath to uphold it. MR. COLIER continued: Also, he wrote it on his shrimp-point rationale here that ... only persons who legally commercially harvested shrimp ... caught here in Southeast fisheries during 1991-95 would be eligible to apply to a limited entry permit. Well, I brought this to his attention and ... he wrote back to me that he did not want to discuss this. I had to go to the ombudsman to get an answer from him, and he seems to worm away from that. I don't think this is right when "commercially harvest" means the lawful ... taking and selling of shrimp. Number 2390 MR. TWOMLEY responded that he had spent a lot of time on the phone with Mr. Colier discussing the issues. He said "we've addressed it formally" and Mr. Colier went to court to challenge [CFEC's] decision; that "came to an end." MR. TWOMLEY told the committee that the nature of limited entry is that it is controversial. The commission is in the realm of decision-making that former Governor Hammond described as, "You can achieve a balanced decision in this process, but only if you offend everybody at least a little bit." Mr. Twomley stated his belief that [CFEC] has won some general acceptance for fairness, but individuals can complain and always have something about which to complain. CO-CHAIR SCALZI announced the end of public testimony. Number 2342 REPRESENTATIVE GREEN mentioned the supreme court and buy-backs. He asked Mr. Twomley what that number would be. MR. TWOMLEY answered that [CFEC] doesn't have an opportunity to determine the optimum number for a fishery - which would be the "triggering" number for a buy-back program, if it were lower than the number of units of gear. He defined "optimum number" as that which is just right for the economics, biology, and management of the fishery. [Determining an optimum number] is a difficult task. The optimum number chosen for the sablefish fishery is currently being challenged in court, for example; it will be interesting to see the outcome and to discover how the court views that process. Number 2274 REPRESENTATIVE GREEN remarked that the issue is of concern to many [legislators] who don't have many commercial fishermen in their districts, but who do have personal-use fisheries, for example. He asked Mr. Twomley if he knew when a decision might be reached in the lawsuit. MR. TWOMLEY replied that this particular lawsuit is just getting started in superior court; if it goes to supreme court, it could take three years. REPRESENTATIVE GREEN noted that to an outsider, when there apparently are too many boats in the water for the number of fish, the logical answer is to reduce the number of boats so that the remainder could have a better livelihood. He said that is obviously too simple. MR. TWOMLEY replied that in response to a request from the governor and salmon fishermen, [CFEC] produced an outline of options for fleet reduction. It addresses federal and state buy-backs, as well as a catalogue of every idea "we've" heard of for fleet reduction, including the following: ideas that would require the board's action; ideas that would require legislation; and some ideas that would vary from year to year. The resulting publication is available to fishermen. Although no one has picked up an options yet, he stated his belief that [the publication] has helped advance the discussion; he offered to work through it with anyone who is interested. REPRESENTATIVE GREEN thanked Mr. Twomley and expressed interest in receiving a copy of the publication. Number 2172 CO-CHAIR SCALZI agreed the follow-up information will be helpful. He reminded the committee that HB CO-CHAIR SCALZI announced the next order of business would be HOUSE BILL NO. 216, "An Act relating to the emergency order authority of the commissioner of fish and game and to meetings of the Board of Fisheries." [The bill was sponsored by the House Resources Standing Committee.] Number 2113 REPRESENTATIVE McGUIRE made a motion to adopt the proposed committee substitute (CS), Version L [22-LS0774\L, Utermohle, 4/6/01], as a work draft. [No objection was stated.] CO-CHAIR SCALZI explained the changes to subsection (d) [page 3 of Version L]. He reminded members that at the previous hearing, concern was expressed by the Alaska Department of Fish and Game (ADF&G) that the language in Section 2, subsection (d) [of the original bill], which is the "meat" of the bill, was too broad; the commissioner believed this language would put undue pressure on him to make changes and regulatory amendments regarding the Board of Fisheries that he felt would compromise that board's authority. CO-CHAIR SCALZI reported that the language [in Version L] was run by the department, and that work was done with the department's legal counsel, Lance Nelson. Language was arrived at that seemed palatable to all: the new language in subsection (d). He asked Mr. Nelson to comment. Number 2031 LANCE NELSON, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, testified via teleconference. He pointed out that [subsection (d)] doesn't address biological emergency situations. Rather, it is targeted to address a situation in which there is a possible lost harvest. Therefore, Mr. Nelson said he doesn't believe the language changes the current law, under case law, regarding biological emergency situations. MR. NELSON told members he believes, however, that it codifies current case law, as expressed in the Peninsula Marketing Association [v. Rosier] case that the [Alaska] Supreme Court decided in 1995, although he believes it makes it even more specific regarding exactly what the commissioner needs to do, based on new information. Number 1973 CO-CHAIR SCALZI responded that the intent is to allow the commissioner, in extreme cases, to be able to open a fishery previously closed by the board under a regulatory action or management plan; if all criteria in subsection (d) have been met, then the commissioner may be able to open up a fishery. Certainly, under a biological emergency, the commissioner now has authority to close a fishery; that was never a question, but there was a question regarding the ability to open a fishery. CO-CHAIR SCALZI further explained that the intent is to remedy a problem that occurred in Cook Inlet and "potentially Area M or any other area that has ... subsequent closures to it right now, that under the management plan cannot be opened." He asked whether there were questions or comments regarding subsection (d); none were offered. Number 1895 DOUG MECUM, Director, Division of Commercial Fisheries, Alaska Department of Fish and Game, came forward to testify, noting that also present were Gordy Williams, ADF&G's legislative liaison; and Diana Cote, executive director of the Board of Fisheries. MR. MECUM advised members that he had nothing to add regarding subsection (d), except to say [Co-Chair Scalzi] had characterized very well their discussions on the ability to come to some accommodation on the language. He also concurred with the Department of Law that it clarifies existing responsibilities and authorities between the board and the commissioner. Mr. Mecum added, "We don't believe that it does upset the balance of power between the board and the department that's outlined in statute and in law. We believe that the earlier version did, and we expressed that concern to you." CO-CHAIR SCALZI voiced his appreciation to the [ADF&G] and the Department of Law for working on this. He informed listeners that [Version L] had been faxed to Dan Coffey, chairman of the Board of Fisheries, who had indicated he would send Co-Chair Scalzi written comments, both his own and perhaps those of other board members. Number 1782 CO-CHAIR SCALZI turned attention to Section 3, regarding the board's "agenda-change request language." last hearing, the department indicated no problem with that language. However, Mr. Nelson had suggested an amendment to it. [Amendment 1] read: This subsection does not restrict the board's authority to schedule and consider regulatory changes as reasonably necessary for coordination with federal fishery agencies, programs, and laws. CO-CHAIR SCALZI explained that [Amendment 1] would clarify that if the board needs an agenda change regarding the North Pacific [Fishery] Management Council (NPFMC) or some other federal entity, it may change its agenda to do so. He said it isn't necessary, but if the Department of Law feels comfortable with it, he has no objection. In response to a question from Representative Green, he specified that Amendment 1 would be added following the last paragraph of Section 3 [page 3 of Version L]. Number 1700 REPRESENTATIVE McGUIRE made a motion to adopt the foregoing as Amendment 1. CO-CHAIR SCALZI asked Mr. Nelson whether Amendment 1 satisfies the department as far as any "future ties on their agenda" regarding federal and state meetings. MR. NELSON answered that he believes it does. MR. MECUM expressed support for Amendment 1. Number 1610 CO-CHAIR SCALZI asked whether there was any objection to Amendment 1. There being no objection, Amendment 1 was adopted. CO-CHAIR SCALZI turned the committee's attention to the main language in Section 3. Number 1592 MR. MECUM noted that the commissioner, in previous testimony, said he didn't have any particular problems with that part of the bill. Mr. Mecum told members: We stated our preference that if the legislature was going to adopt legislation that sort of directed how the ... Board of Fisheries set their agendas and developed standards for that, that those standards and that direction be, most appropriately, directed to the Board of [Fisheries] themselves. This particular version does set up a little bit of a tension between the department and the Board of Fisheries on issues related to conservation issues, in terms of changing their cycle. And I think you can appreciate the fact that whether or not we agree with what the board has done in the past, in terms of taking things up out of cycle or not, the responsibility, the blame, the credit, whatever, has rested with the board. And after all, this is the board setting their own agenda. We also did say that our preference would be that the board would listen to the department's advice, would defer to the scientific judgment of the staff - their staff - on issues of conservation. But under the current laws, under their current regulations, they don't have to do that. This would, in fact, require a concurrence by the commissioner, by the department, on issues of conservation, prior to the board being able to take up an issue out of cycle, and where it would apply ... is, essentially, in the instances of the public bringing forward an agenda-change request. It wouldn't restrict, obviously, the department's ability to bring one forward; it wouldn't dictate that the board take it up; it wouldn't stop the board from developing their own agenda-change requests, nor would it stop the board from changing their schedule, in any way, to deal with any issue that they thought was appropriate. So it's very limited in ... scope. But as you can see - and I think you can appreciate it - it does set up a little bit of a different playing field. CO-CHAIR SCALZI said that certainly is the intent. Number 1428 JERRY McCUNE, United Fishermen of Alaska, came forward, stating support for Version L. Regarding the agenda-change request, he told members it addresses only "the public's an agenda-change request. Mr. McCune explained, "All we're asking for is a little bit of proof when you bring an allegation [regarding] a conservation issue before the board." He said it doesn't mean the board cannot take up a conservation issue, nor that the public cannot bring that issue [before the board]. MR. McCUNE noted that the scientists in charge of most conservation issues are in the department, rather than on the board; he suggested there should be some concurrence that there is a problem, between the department and the board, in order [for the public] to bring something like that forward. Regarding subsection (d), Mr. McCune said he could think of only rare instances in which the commissioner would have to do that, such as when a fish run would be bigger than expected and, therefore, the fishery might have to be opened in order to harvest some "leftover fish." Mr. McCune added foresee that happening often, if ever. Number 1293 SUE ASPELUND, Executive Director, Cordova District Fishermen United, testified via teleconference in support of HB commissioner could [open a fishery] now because [the commissioner] could, in the past, close down a fishery. Mr. Winn expressed surprise that 20 million pink salmon - about the number caught last year by seiners in Southeast Alaska - went up the rivers in the Cook Inlet drainage. In his 30 years in Cook Inlet, he had never before seen that many fish of one species. CO-CHAIR SCALZI asked whether anyone else wished to testify; there was no response. He closed the public testimony. Number 1126 CO-CHAIR MASEK asked Mr. Mecum how many emergency openings, in the course of an average fishing season, have been needed to allow people to catch more fish. She also requested clarification about the department's view of the bill. MR. MECUM replied that for emergency orders issued [by ADF&G], there have been 500 to 1,000 each season; it doesn't vary much from year to year. He restated that [the department] believes the bill, in its current construction, is essentially a clarification of existing responsibilities and authority that the commissioner has. [The department] had thought the previous [version] went too far, upsetting the balance of power between the department and the Board of Fisheries in that it would also [ADF&G] to supersede regulations that might deal with allocation issues. Mr. Mecum explained, "We testified that we didn't want to have any part of that; we don't want to be the Board of [Fisheries]." He specified that his comments applied to Sections 1 and 2, not Section 3. Number 0796 CO-CHAIR MASEK made a motion to adopt Amendment 2, which read [original punctuation provided]: Page 3 Line 3: To add after under this section to close a fishery, or allow or extend a fishing season. Renumber accordingly Number 0732 JENNIFER YUHAS, Staff to Representative Beverly Masek, Alaska State Legislature, explained that Amendment 2 came about because of an understanding that the commissioner is already allowed to open or close a season, and that the bill doesn't speak to both of those duties. CO-CHAIR SCALZI responded that it was clear that the commissioner could close a fishery, but the question was whether the commissioner could open one. He deferred to ADF&G regarding whether Amendment 2 adds any significant change to the concept of the bill. Number 0674 MR. MECUM restated his belief that [Version L] already addresses the issue. He referred to page 3, subsection (d), and pointed out that it says "notwithstanding (a) of this section". Furthermore, subsection (a) is [AS] 16.05.060, the existing authority of the commissioner, which basically says "nothing in this section restricts the commissioner's ability to summarily open or close seasons for the purposes that are set out in statute." He cautioned that it might confuse the issue. MR. NELSON also expressed concern that Amendment 2 might present an issue with the language a couple of lines down [Section 2, subsection (d), page 3, lines 5-7], which read, "The commissioner may exercise authority under this subsection only upon a determination that the basis for the board's regulatory provisions can be adequately addressed." MR. NELSON explained that the language was crafted to address a situation in which there is a conservative board regulation and a more liberal "EEO" that is being contemplated for opening of a fishery, despite a restrictive board regulation. He cautioned that changing that language to address closures as well as openings may place extra obstacles when there are emergency conservation situations. CO-CHAIR SCALZI asked whether there could be a negative effect from closing a fishery. MR. NELSON said he wasn't absolutely sure, but that he worried about it. The language was crafted to address the possibility of a lost harvest. He suggested perhaps further review would be required. Number 0283 CO-CHAIR SCALZI stated his intent to move the bill forward and proposed that the research could be done in the interim. He then specified that he objected to Amendment 2 at this time. REPRESENTATIVE McGUIRE asked for clarification about why there should be a different standard for a closure versus an opening. MR. MECUM restated his belief that Version L deals with the issue of closures, and doesn't change that in any way. The Department of Law is saying here that it may confuse things, he pointed out, because in order to enact a closure, a determination must be made relative to what the board has already done. By contrast, the existing statute in no way limits the commissioner's power to close a fishery for conservation purposes. Mr. Mecum acknowledged that [Amendment 2] is somewhat confusing in that regard. MR. MECUM read from page 3, line 3, as it would read with Amendment 2: "under this section to close a fishery, or to allow or extend a fishing season". He commented that the whole sentence is aimed, again, at the issue of opportunity, so that an allowable harvest would not be forgone. It does seem a little bit out of place there, he remarked. He reiterated his belief that [Version L] addresses the concern, if the concern is that the commissioner's power to close a fishery is in no way encumbered. TAPE 01-32, SIDE A Number 0001 MS. YUHAS told the committee Co-Chair Masek's intent, as sponsor of Amendment 2, was to match the original language, and that Amendment 2 in no way mandates closures by the commissioner. In response to a question from Co-Chair Scalzi regarding whether Ms. Yuhas saw the problem with the way the rest of the bill is constructed, she said she didn't see the problem and believed it matched the existing language. Number 0189 MR. NELSON, in response to Representative Kerttula, explained that the language in Section 2 provides a safeguard, to a certain extent, by requiring a rationale, as explained by the commissioner, that the commissioner has reviewed the board's more conservative restrictions and finds that those "are addressed by the current situation" regarding the opening that [the commissioner] is going to issue or a season that [he or she] is going to extend. It puts a premium on conservation. The commissioner would need to make a special determination that conservation will not be endangered. MR. NELSON explained that it may be a little more restrictive than a "DMA" decision, which won't be based will only address a situation in which the commissioner wants to be more conservative than the board. This, by contrast, talks about a situation in which a commissioner wants to be more liberal because of receiving new information that an opportunity will be lost otherwise. Amendment 2, to his belief, would add an extra requirement on the commissioner, even when the commissioner is acting more conservatively, rather than just when the commissioner is going to act more liberally in the face of a conservative board or regulation. If that is the intent, that is fine, he said, and is the legislature's prerogative. But it is a change that would make it narrower. Number 0499 CO-CHAIR SCALZI explained his objection: From his understanding of [Mr. Nelson's] testimony, [Amendment 2] would make it more difficult to close a fishery than under current law; if there were a challenge, it would have to be done "upon a determination that the basis for the board's regulatory provisions can be adequately addressed" [lines 5-7]. CO-CHAIR SCALZI said if the department couldn't adequately address the provisions but there was a biological need to close a fishery, he would always opt to be more conservative regarding the resource and close the fishery, rather than keeping it open. Furthermore, after listening to legal counsel, he himself believed this would do just the opposite of what the intent is. Number 0596 REPRESENTATIVE STEVENS spoke against Amendment 2, saying he couldn't see what would be lost by leaving it out. Number 0625 REPRESENTATIVE GREEN asked Co-Chair Masek whether, having heard from legal counsel that the amendment would make it more difficult, she still wanted to include it. CO-CHAIR MASEK reiterated her staff's comment that Amendment 2 doesn't mandate a closure and matches existing language. She also stated her own belief that it doesn't make it harder to close a fishery. In further response to Representative Green, she indicated she was contesting the attorney's view. A roll call vote was taken. Representative Masek voted for Amendment 2. Representatives Green, McGuire, Stevens, Kapsner, Kerttula, and Scalzi voted against it. [Representatives Fate and Chenault were not present.] Therefore, Amendment 2 failed by a vote of 1-6. REPRESENTATIVE McGUIRE remarked during the vote that she wanted to study Amendment 2 in the interim "to see if the difference is really what they say." Number 0820 REPRESENTATIVE KERTTULA made a motion to move CSHB Standing Committee by a vote of 6-1. ADJOURNMENT CO-CHAIR SCALZI recessed the House Resources Standing Committee meeting at 3:20 to a call of the chair, with the meeting scheduled to resume at 5 p.m. the following day.

Document Name Date/Time Subjects

04/09/2001 01:15 PM House RES

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