Legislature(2001 - 2002)
04/09/2002 03:40 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS COMMITTEE
April 9, 2002
3:40 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Randy Phillips, Vice Chair
Senator Rick Halford
Senator Ben Stevens
Senator Bettye Davis
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 216(RES)
"An Act relating to the emergency order authority of the
commissioner of fish and game and to meetings of the Board of
Fisheries."
HEARD AND HELD
CS FOR HOUSE CONCURRENT RESOLUTION NO. 26(STA)
Supporting increased use of the house arrest program/electronic
monitoring with sobriety monitoring as a means of preventing
crime and reducing the high costs of imprisonment in Alaska.
MOVED CSHCR 26(STA) OUT OF COMMITTEE
SENATE CONCURRENT RESOLUTION NO. 30
Relating to Alaska Salmon Day.
MOVED SCR 30 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
HB 216 - No previous action to record.
HCR 26 - No previous action to record.
SCR 30 - No previous action to record.
WITNESS REGISTER
Sara Nielson
Aide to Senator Ben Stevens
Alaska State Capitol, Room, 119
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SCR 30
Jessica Menendez
Aide to Representative Joe Green
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced HCR 26
Judge James Wanamaker
rd
3Judicial District Anchorage
th
825 W. 4Avenue
Anchorage, AK 99501-2004
POSITION STATEMENT: Testified on HCR 26
Rudolph Newman
No address provided
POSITION STATEMENT: Testified on HCR 26
Greg Pease
Executive Director
Gastineau Human Services
1613 Anka Street
Juneau, AK 99801
POSITION STATEMENT: Testified on HCR 26
Pam Watts
Director
Governor's Advisory Board on Alcoholism & Drug Abuse
Department of Health &
Social Services
PO Box 110608
Juneau, AK 99801-0608
POSITION STATEMENT: Testified on HCR 26
Candace Brower
Program Coordinator
Department of Corrections
341 N. Franklin Suite 400
Juneau, AK 99801
POSITION STATEMENT: Testified on HCR 26
c
Janet MCabe
Partners for Progress
No address provided
POSITION STATEMENT: Testified on HCR 26
Representative Drew Scalzi
Alaska State Capitol, Room 13
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced HB 216
Paul Seaton
58395 Bruce Street
Homer, AK 99603
POSITION STATEMENT: Testified on HB 216
Sue Asplund
P.O. Box 939
Cordova, AK 99574
POSITION STATEMENT: Testified on HB 216
Bob Merchant
43961 K Beach Road # E
Soldotna, AK 99669
POSITION STATEMENT: Testified on HB 216
Paul Shadura II
P.O. Box 1632
Kenai, AK 99611
POSITION STATEMENT: Testified on HB 216
Lance Nelson
Assistant Attorney General
Natural Resources Section
Department of Law
th
1031 W. 4Avenue Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Testified on HB 216
ACTION NARRATIVE
TAPE 02-19, SIDE A
CHAIRMAN GENE THERRIAULT called the Senate State Affairs
Committee meeting to order at 3:40 p.m. Present were Senators
Davis, Stevens, Halford and Chairman Therriault. Senator Phillips
arrived shortly.
SCR 30-ALASKA SALMON DAY
SARA NIELSEN, staff to Senator Ben Stevens, explained that SCR 30
would proclaim June 30, 2002 as Alaska Salmon Day. The
proclamation would recognize the salmon industry as a huge part
of all Alaskans' lives and would raise public awareness of one of
Alaska's most important industries by promoting the catching and
eating of salmon.
Alaska is the largest commercial wild salmon fishery in the world
and employs more than 29,000 people. Nearly 95 percent of all
commercially caught salmon in the United States are harvested in
Alaska. In the last decade state salmon harvests totaled more
than $4.5 billion making it extremely vital to the Alaskan
economy.
The sport of salmon fishing is important to visitors and Alaskans
alike. In 2001, nearly 500,000 sport fishing licenses were issued
in Alaska.
For generations of Alaskans salmon has been a nutritional source
and is a large part of the state's heritage. Alaska Salmon Day
would recognize this importance and promote the salmon industry.
There was no further testimony on SCR 30
CHAIRMAN THERRIAULT said he had no prepared CS and no amendments
were offered. There was one zero fiscal note.
SENATOR HALFORD commented it was his understanding that a
resolution that is sent out of state should be a joint
resolution. He asked whether the drafters were responsible for
the change.
MS. NIELSON replied Legislative Legal advised them to use a
concurrent resolution.
SENATOR HALFORD excused himself to get a copy of the Uniform
Rules.
CHAIRMAN THERRIAULT asked him whether he wanted him to set the
resolution aside.
SENATOR HALFORD replied he did not want the resolution held.
SENATOR DAVIS made a motion to move SCR 30 and attached fiscal
note from committee with individual recommendations.
There was no objection.
CHAIRMAN THERRIAULT announced SCR 30 would move from committee
and if it was determined that sending a joint resolution was more
appropriate than sending a concurrent resolution then the form
could be amended in the Resources Committee.
HCR 26-HOUSE ARREST/ELECTRONIC MONITORING
JESSICA MENENDEZ, staff to Representative Joe Green, explained
the resolution supports increased use of the House Arrest and
Wellness Court Programs as a means of preventing crime and
reducing the high cost of imprisonment in Alaska.
The purpose of the resolution is to urge the Department of
Corrections, the Department of Law and attorneys to work together
to expand the use of this program as a condition of bail and
complementary to a therapeutic court program. Included in
member's packets was background information on the House Arrest
Program.
In 1998, the Legislature established the House Arrest Program
authorizing the Commissioner of Corrections to designate
prisoners who would serve their terms of imprisonment by wearing
a bracelet seven days a week, 24 hours a day to provide
electronic monitoring. The bracelet allows the prisoner to
continue to participate in family, education or work commitments.
Additionally, sobriety can be monitored with a piece of equipment
that recognizes the offenders voice and takes a breath reading to
measure their blood alcohol level. That data is transmitted to a
computer and then dispatched to corrections to alert them as to
whether or not there has been a violation.
The use of both the electronic bracelet and the sobriety
monitoring equipment can be used as an alternative to
incarceration. The cost of the program is about $14.00 per person
per day compared to the statewide average cost of incarceration
of $114.00 per person per day.
Wellness Court is a special court that handles cases involving
municipal alcohol and drug addictive offenders through an
intensive supervision and treatment program. A federal grant from
the Department of Justice has helped fund the wellness court in
Anchorage and in Juneau. This is another cost alternative to
treatment. Individuals in the program commit to a highly
monitored 18-month program where they are required to take
Naltrexone, an anti-craving medication. Each offender will have a
case manager and make frequent visits to the District Court to
speak to the judge about their success in attending required
meetings and treatments. After the program is successfully
completed, they have a reduced or suspended sentence.
The primary goals of wellness court are to reduce recidivism,
reduce substance abuse among the participants and to rehabilitate
the participants. The program offers front-end diversion as
opposed to long-term sentences that aren't really successful in
addressing the underlying problem.
Both programs have been somewhat successful and the resolution
points to increased use of and support for the programs.
rd
JUDGE JAMES WANAMAKER, 3Judicial District Anchorage Judge,
testified via teleconference saying the resolution calls for
expanding the use of the house arrest program and electronic
monitoring as a condition of parole. The Department of
Corrections has been very helpful in getting the program
underway. He then gave a brief description of the pioneer case
that was very successful.
The program is widely used in Anchorage and they look forward to
starting similar programs statewide. He said there is great
benefit to building individuals back up to full citizenship and
at the same time saving the state money because the participants
pay the cost of the program themselves.
CHAIRMAN THERRIAULT announced the committee was probably going to
look favorably on the resolution so testifiers should briefly
state their points of support or areas of concern.
RUDOLPH NEWMAN, successful program participant, testified via
teleconference in support of the program. After numerous arrests
and many years in jail, he completed the program and is pleased
to report that he is now a responsible member of his community.
SENATOR DAVIS told Mr. Newman she observed him on Gavel to Gavel.
She sent him sincere congratulations on his progress and
encouraged him to keep up his good work.
GREG PEASE, Executive Director for Gastineau Human Services since
1987, said the resolution points to the new direction justice is
taking worldwide and recognizes that the use of technology,
pharmacology and coordinated treatment service delivery can
prevent criminal behavior and reduce the high cost of
incarceration. It recognizes the positive affects the therapeutic
court movement has had on the substance-abusing offender and
their families and requests that appropriate state agencies work
together to educate themselves and the public in the use of
current correctional and therapeutic models of behavior
modification and treatment. He agreed with Judge Wanamaker
regarding the support the Department of Corrections has given.
He pointed out that on page 2, line 5 the language refers to new
technology for sobriety monitoring. He clarified that the
technology was not new, but there are new pieces of technology.
As a representative of the American Probation and Parole
Association for Washington, Oregon, Montana and Alaska he
provided committee members with those states' letters of support.
However, he wanted to make it clear that neither electronic
monitoring nor house arrest is a substitute for intensive case
management services. The Department of Corrections and the
Department of Health and Social Services are currently facing
budget cuts that will be devastating to the population he has
worked with for over 25 years because high tech will never
replace high touch.
CHAIRMAN THERRIAULT asked Mr. Pease to clarify that the word
"new" on page 2, line 5 was not problematic.
MR. PEASE replied it wasn't, it is just a note of clarification.
SENATOR HALFORD asked whether there was any interaction with
victim advocate groups regarding the reduction or elimination of
prison terms after the program was successfully completed. He
thought a victim might want to be notified when an offender was
released or had their term reduced.
MR. PEASE replied they currently operate victim impact groups. It
is part of the restorative justice program to include the victim.
JUDGE WANAMAKER agreed and said this is required by the new law.
Victims are notified at sentencing.
CHAIRMAN THERRIAULT asked if part of the notification included
the type of incarceration.
JUDGE WANAMAKER said that is discussed in the process.
SENATOR HALFORD asked whether the victim has the right to object.
JUDGE WANAMAKER said they did.
4:00 p.m.
PAM WATTS, Executive Director of the Advisory Board on Alcoholism
and Drug Abuse, testified in support of the resolution. The
program not only frees prison beds, it allows offenders the
opportunity to function productively to address work, education
and family obligations. This program is an example of how people
can be accountable for their behavior, be responsible for their
obligations as citizens, and receive the needed structure of
sobriety monitoring.
This also offers opportunities for treatment that are necessary
to achieve lasting change in behaviors. The program reduces costs
and increases the likelihood the offenders will not be
recidivists.
They too are extremely concerned about the proposed budget cuts
to the Division of Alcoholism and Drug Abuse because it would
impact the ability of these programs to be effective. Monitoring
alone without the treatment to reduce the craving would fall
short of the anticipated goals of the program.
CANDACE BROWER, legislative liaison for the Department of
Corrections, testified in support of the resolution. She
reiterated that when the Department of Corrections puts someone
on electronic monitoring, they are required to notify victims and
they have the right to object. She then clarified that the $14.00
per day is for the equipment and the offender is required to pay
for that. However, they do have waivers so indigent individuals
aren't excluded from participation.
These programs cannot operate without the personnel to oversee
and supervise offenders, to be able to intervene when a violation
occurs and to respond to the equipment. It's a very good tool for
getting offenders back into the community and functioning
productively.
C
JANET MCABE with Partners for Progress in Anchorage testified
via teleconference in support of the resolution. She said that in
the last two years the use of the house arrest program has
resulted in a cost avoidance of over $2.3 million and there is
great opportunity to expand the program.
There was no further testimony.
CHAIRMAN THERRIAULT said he had no prepared CS. He noted the zero
fiscal note. There were no proposed amendments from committee
members.
He asked for the will of the committee.
SENATOR PHILLIPS made a motion to move HCR 26 and attached fiscal
note from committee with individual recommendations.
There being no objection, HCR 26 moved from committee.
HB 216-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS
REPRESENTATIVE DREW SCALZI, bill sponsor, said he would refer to
the handouts in the committee packets during his testimony.
This is a bill to help the fisheries in two important ways.
First, it clarifies the Department of Fish and Game's emergency
order authority in relation to the Board of Fisheries management
plans and the balance of power intended by the Legislature. It
strengthens the stability of the public process by legitimizing
the use of the conservation purpose of Board of Fisheries
agendas. Over 1,000 emergency orders (EO) are issued statewide
every year for both fish and game. They are issued to achieve
management objectives, provide for sustained yield and to provide
harvest opportunities for all users. They are an in-season
management measure.
There is, however, a gray area in statute that creates a problem
with EO authority. Current statute states that there is no limit
of power of the commissioner when circumstances arise, which is
vague, problematic and subject to wide interpretation and abuse.
The purpose of the bill is to clarify what that gray area means
in statute based on Board of Fisheries policy statements and the
Alaska Supreme Court decision from the Peninsula Marketing
Association versus Rosier (2/24/95) that clearly spells out when
the commissioner may open or close a fishery already considered
and acted upon by the Board of Fisheries.
He then asked members to turn to the court case and read from
page 2:
The Commissioner of the Department of Fish and Game
(Commissioner) presented a fisheries management
proposal to the Board of Fisheries (Board). The
proposal was rejected. The Commissioner then indicated
that he intended to implement the proposal by utilizing
his emergency powers, notwithstanding the Board's
decision. The superior court enjoined the Commissioner
from using his emergency powers if based on information
already presented to the Board but declined to enjoin
him from using those posers if based on newly developed
information or events occurring after the Board's
rejection of his proposal.
He then referred to page 5 and read a portion of the opinion that
essentially granted Peninsula Marketing Association the relief it
requested.
…the Commissioner is prohibited from taking any action
on the [False Pass] fishery based upon the information
already presented. That does not prevent the
Commissioner from taking emergency order authority on
the [False Pass] fishery based on some additional
information not available previously, and using the
information he already has. However, if all the
information available is only that which was available
at the Board meeting the Commissioner is prohibited
from taking emergency order action.
Highlighted on page 6 under "MOOTNESS" he read:
The issue presented is technically moot. However, we
accepted this petition and cross-petition because they
fall under the public interest exception to the
mootness doctrine. In applying the public interest
exception we consider
(1) whether the disputed issues are capable
of repetition, (2) whether the mootness doctrine,
if applied, may repeatedly circumvent review of
the issues and, (3) whether the issues presented
are so important to the public interest as to
justify overriding the mootness doctrine.
…The issue of the Commissioner's emergency power over
matters previously considered by the Board will likely
resurface and avoid review. By the time the court
reviews the Commissioner's use of emergency power, the
emergency is likely to be over. Conservation and
utilization of fish and game resources are important to
the public interest in Alaska. For these reasons we
decided to hear the merits of this case.
CHAIRMAN THERRIAULT said in that specific case the emergency was
probably over by the time it got to court. However, because the
issue was likely to be recurring, they chose to take it up and
deal with the issue. That is the mootness issue.
REPRESENTATIVE SCALZI agreed then asked members to turn to page
12 of 15 and the read the following:
We conclude that the superior court correctly
identified the Commissioner's emergency powers and the
limits on those powers. This holding does not impact
the Commissioner's authority to exercise his emergency
powers in a true biological emergency. However, it does
circumscribe his ability to override the Board's
decisions where he is relying on evidence already
presented to and reviewed by the Board.
III. CONCLUSION
We AFFIRM the superior court's decision and hold
that the Commissioner may not use his emergency powers
to implement a fisheries management program already
considered and rejected by the Board, in the absence of
newly developed information or events occurring after
the Board's decision.
REPRESENTATIVE SCALZI then referred to 5 AAC 96.625, which is the
Board of Fisheries policy. He read:
In accordance with state policy expressed in AS
44.62.270, emergencies will be held to a minimum and
are rarely found to exist. In this section, an
emergency is an unforeseen, unexpected event that
either threatens a fish or game resource, or an
unforeseen, unexpected resource situation where a
biologically allowable resource harvest would be
precluded by delayed regulatory action and such delay
would be significantly burdensome to the petitioners
because the resource would be unavailable in the
future.
He said that is why clearing the gray area is so important. This
does not change the balance of power it simply clarifies the
emergency order.
On page 3, section 2 he read lines 1 through 5 of the bill and
described it as the crux of that section:
He said this is very clear according to what he read in the court
case and the policy of the Board of Fisheries. He agrees with the
conclusions and the bill itself clarifies and does not unbalance
the power.
Section 3 of the bill deals with the Board of Fisheries agenda.
Currently they take up issues statewide on a three year rotation
cycle. The bill addresses the integrity of the process and the
need for stability, which all state resource users need. He then
read the following from the Board joint policy under Alaska
Municipal Code 95.65.25 (d) and (e):
(d) The public has come to rely on this regularly
scheduled participatory process as the basis for
changing fish and game regulations. Commercial
fishermen, processors, guides, trappers, hunters, sport
fishermen, subsistence fishermen, and others plan
business and recreational ventures around the outcome
of these public meetings.
(e) …The boards find that petitions can detrimentally
circumvent this process and that an adequate and more
reasonable opportunity for public participation is
provided by regularly scheduled meetings.
REPRESENTATIVE SCALZI then read lines 19 through 23 in Section 3
that listed three criteria under which the board may take up a
proposal out of cycle. With the exception of the following
addition to criteria (1) that says, "…if the commissioner concurs
in the determination of the board that a fishery conservation
issue exists and that the issue cannot be resolved under current
regulations," those three criteria are in the regulatory scheme
for the Board of Fisheries. To ensure an actual conservation
emergency exists and cannot be remedied by an existing means, HB
216 requires that the department concur in the determination of
the board. This is consistent with the Legislature's charge to
the department under AS 16.05.010 that requires that "The
commissioner shall be a qualified executive with knowledge of
requirements for the protection, management, conservation and
restoration of the fish and game resources of the state."
SENATOR HALFORD asked whether the board hires the commissioner.
REPRESENTATIVE SCALZI replied it does not, the Governor appoints
the commissioner.
SENATOR HALFORD asked him to explain the board's process in that.
REPRESENTATIVE SCALZI replied that the board process is to
allocate resources among user groups. He said there is a definite
difference between the board and the commissioner. He has worked
with the commissioner and Lance Nelson, the Board of Fisheries
attorney, to ensure there is no change in the balance between the
board and the commissioner. However, they strongly feel that
clarification is needed so that when circumstances arise
allocation stays consistent, but the harvest that is available
does not go unattended.
He asked members to review the news article in their packets
about the abundance of pink salmon in Cook Inlet in August 2000
when least 20 million Pink Salmon showed up after there was a
regulatory closure. This is the type of situation the bill is
designed to address.
CHAIRMAN THERRIAULT called for teleconferenced testimony.
PAUL SEATON testified from Homer in support of HB 216. He said
passage of the bill would probably result in a cost savings to
the state in terms of reduced staff time.
SIDE B
4:30 p.m.
SUE ASPLUND, Executive Director of the Cordova District Fishermen
United, testified from Cordova in support of HB 216. They fully
support the clarification of the commissioner's authority
relative to emergency orders because there are many times
situations arise in-season and require rapid response to either
protect the resource or to take advantage of a harvestable
surplus. It's important that the Board of Fisheries, the
Commissioner of Fish and Game, managers and the public understand
the chain of authority and that those responsible are able to
respond in a timely manner.
This legislation acknowledges that science should be the guide in
determining out of cycle considerations based upon a conservation
purpose and that ADF&G is charged with providing substantive
evidence of such a conservation purpose. Out of cycle regulatory
determinations are serious and must be held to a high standard.
When used for other than correction of an error in a regulation
or the unforeseen impacts of a regulation change, the standard
must be to address a conservation concern of such magnitude that
the department, through the commissioner, determines its
legitimacy based upon scientific evidence.
BOB MERCHANT, President of the United Cook Inlet Drift
Association, testified from Kenai in support of HB 216. It
clarifies legislative intent so new information or unexpected
events will be acted upon in a timely manner and draws a clear
line between the powers of the commissioner and board.
Additionally, by requiring ADF&G concurrence on issues of
conservation, decisions will be based upon scientific evidence.
PAUL SHADURA II, representative of the Kenai Peninsula
Fisherman's Association, testified from Kenai in support of HB
216. Alaska's success in fisheries management is based on the
state's ability to plan for the future and to respond immediately
to the fluctuations due to natural phenomena. Out of cycle costs
to the state will be dramatically reduced.
They also expressed support for SJR 30.
LANCE NELSON from the Department of Law testified they have been
working closely with Representative Scalzi and current language
is a result of the joint efforts. There were several points he
wanted to make clear and on the record.
Section 2 addresses the commissioner's authority to use EO
authority to allow or extend the fishing season. They wanted it
clear that the intent is not to change the status quo as far as
the commissioner's authority to close seasons for conservation
reasons when new information is presented.
Their interpretation of language in section 3, page 3, lines 17-
18 that says, "…in response to a request…" means that the
requests would be from members of the public that want the board
to change the agenda and is not intended or designed to prevent
the board itself from setting its own agenda and changing that
agenda on their own when they decide it is appropriate. If this
interpretation is not correct then they would object because the
board must have the authority to set its own agenda and address
issues as they arise. They understand it does limit, in a similar
way to what its own regulations do now, the board's ability to
respond to requests to change its agenda.
CHAIRMAN THERRIAULT asked him if there was particular wording in
sections 2 or 3 that caused him concern. It appears that section
3 is talking about regulations for amending the agenda and
doesn't seem to speak to the board originally setting its agenda.
It also says there is free will to address things to correct an
error in a regulation or an unforeseen consequence, but there
must be back up from the commissioner for using the conservation
issue.
MR. NELSON agreed then said the Department of Law takes no
position on that measure and he doesn't know that the ADF&G has
taken a position either. They do interpret "request" as coming
from outside the board rather than from the board itself and it
would cause problems if that weren't the case.
CHAIRMAN THERRIAULT asked whether he wanted members of the board
to be able to suggest amending the agenda based on any
conservation concern.
MR. NELSON replied in the affirmative. It's their understanding
that Sue Asplund was referring to a request for an agenda change
from user groups or members of the public as opposed to a board
instigated agenda change."
SENATOR HALFORD read lines 25-30 on page 2 and said that refers
to an agenda change not any source of the agenda change. It is
simply that any agenda change has to go through the standard of
certification by the commissioner. It doesn't appear that the
board would have control over its agenda in that area.
CHAIRMAN THERRIAULT added that is in the finding and intent
section.
SENATOR HALFORD said it is also in the statutory section but it
is clearer in the findings.
CHAIRMAN THERRIAULT asked Mr. Nelson if he had a concern about
that.
MR. NELSON said he did; he can see procedural and organizational
difficulties and it would unnecessarily limit the board's ability
to set its own agenda.
CHAIRMAN THERRIAULT asked Mr. Nelson to explain how a
conservation issue in the Copper River fishery would be brought
to the board when it is meeting and dealing with Western Alaska
fisheries issues.
MR. NELSON said someone would file an agenda change request and
the board would consider that at its first meeting which is
usually a work session in October. The board would decide whether
it met the requirements under the agenda change regulations. If
they accepted the request they would schedule board consideration
of that request at one of the meetings in the upcoming meeting
cycle then put out a public notice on the change.
CHAIRMAN THERRIAULT asked for verification that someone would
have brought the issue to the attention of the board.
MR. NELSON replied that is the case.
CHAIRMAN THERRIAULT said he wanted to know what the procedure
would be if the board itself wanted to schedule something out of
the normal rotation.
SENATOR HALFORD said he assumes board members are lobbied
continually and therefore are well informed about people's
concerns. The problem with the balance is that it changes back
and forth depending who is ahead on the board and who is ahead
with the commissioner.
CHAIRMAN THERRIAULT replied that lobbying is someone bringing an
issue to them. It's not self-initiated.
SENATOR HALFORD said that's true but it's hard to separate what
is self-initiated and what isn't. What is a formal proposal from
an outside source that's made to make an agenda change versus all
the lobbying the board members receive?
REPRESENTATIVE SCALZI said he doesn't see the problem in the
intent language but the intent is to get stability in the three
year rotation. The board can generate a proposal and this
wouldn't have any affect on that. Except for the part referring
to the concurrence of the Department of Fish and Game for
conservation, their language is used.
SENATOR HALFORD replied that the difference reflects who is in
charge. "If it's the concurrence of the commissioner the
department is in charge. If it's initiated by the board, through
that process, the board is in charge. It is the ultimate tool by
which they reach the agenda change by which they can reach what
it is. If they're getting a huge amount of complaint out of one
of their major allocation issues, which always get justified by
conservation concerns, they can either reach it or not reach it
based on either the board's decision or the commissioner's
decision."
CHAIRMAN THERRIAULT said his feeling was that Representative
Scalzi wanted to interject some science into the decision and he
agrees those decisions should be based on science rather than
politics.
REPRESENTATIVE SCALZI replied that was correct; the intent is to
use biological managers to justify the decisions.
CHAIRMAN THERRIAULT stated Mr. Nelson was asking for
clarification of intent for section 3, but the findings and
intent don't necessarily clarify to his satisfaction.
REPRESENTATIVE SCALZI said he doesn't understand the problem; it
speaks to the change in the meeting agenda to correct errors in
regulations. The part Senator Halford mentioned regarding the
change in agenda to address a fishery conservation issue be
subject to the determination by the commissioner. He wondered
whether the concern was that the entire agenda was subject to the
commissioner.
SENATOR HALFORD replied that wasn't it; it's that it changes.
REPRESENTATIVE SCALZI said the intent is that it changes for
conservation purposes.
CHAIRMAN THERRIAULT announced that Senator Halford had to leave
the meeting, but he had an amendment to offer. He informed
Representative Scalzi the committee would hear the issues and
hold the bill.
MR. NELSON said his concern was that the board would be required
to make one of the findings [from section 3] if it was going to
change its agenda on its own volition. His concern isn't based on
conservation determinations; it's broader than that.
CHAIRMAN THERRIAULT asked him to explain his comment about
allowing the commissioner to open but not close the season.
MR. NELSON replied that was from section 2, page 3, lines 1
through 4. The other side of the EO authority besides opening a
season and allowing fishing opportunities is to close a season
and stop fishing. Section 2 doesn't address that aspect; it
expressly clarifies what the commissioner's authority is to allow
more fishing, but doesn't address the situation where it needs to
be closed for biological emergencies or conservation concerns.
CHAIRMAN THERRIAULT asked if they were trying to preserve the
commissioner's right to make those emergency closures.
REPRESENTATIVE SCALZI thanked Mr. Nelson for making himself
available to give testimony and told him that the intent is
correct. It was never assumed that the commissioner's EO
authority for closures would be diminished.
CHAIRMAN THERRIAULT questioned why the language regarding limited
circumstances in the findings section on page 1 wasn't repeated
in the intent section found on page 2, lines 17 through 21. He
thought that to give a higher level of comfort it should be
included.
REPRESENTATIVE SCALZI didn't think there needed to be any further
clarification. "For in-season management you couldn't have a
committee meeting, you have to have an individual who is paid and
whose task is to in-season manage, assess the run strength or
assess the run weakness and make the immediate openings and
closures that are necessary."
CHAIRMAN THERRIAULT said Representative Scalzi went to great
lengths in the findings section dealing with the commissioner
being able to open the season, but that wasn't repeated on page
2, line 17. He asked whether there was a reason they didn't
include, "The commissioner is better able to respond quickly to
emergency situations to change…" because that is the intent.
REPRESENTATIVE SCALZI replied it is probably an overstatement and
isn't needed in relation to the EO.
CHAIRMAN THERRIAULT replied that it's only in emergencies.
REPRESENTATIVE SCALZI said no. The board doesn't take action on
the over 1,000 EOs that are issued every year. Those are
guidelines that are set up by the department and are part of the
day-to-day management. It could be included if it raised the
comfort level, but the statement that the commissioner is better
able to respond quickly is a given.
CHAIRMAN THERRIAULT pointed out that although it happens
routinely, it's based on new information the board didn't have
previously and if he doesn't allow the fishery to open to adjust
to those returns the stock would be lost.
REPRESENTATIVE SCALZI replied he was beginning to understand the
confusion. He explained that the day-to-day EO authority is there
and is based on the management plan that the Board of Fisheries
puts out initially. The EO clarification that the bill addresses
only applies to a management plan that does not allow for those
EOs to take place on a day-to-day basis.
CHAIRMAN THERRIAULT asked if it was correct that as part of the
management plan, they specifically delegated that authority for
those day-to-day calls to the commissioner.
REPRESENTATIVE SCALZI replied that is correct.
SENATOR STEVENS added the commissioner rarely issues the order;
it's usually deferred to the regional biologist who has the
management authority. Therefore, this discussion would cover the
extreme case where there wasn't a fisheries management plan in
place but there was an emergency order situation and the
commissioner had to act immediately.
During the commercial season, emergency orders are a normal tool
by which fisheries are both opened and closed. It's only during
that time continuum that the board approves the commissioner's
authority to issue emergency closures during that period. Most of
the time it's during the beginning or the tailing of the fishing
season.
CHAIRMAN THERRIAULT asked if the management plans are usually set
out as a specified time and the commissioner or the department
exercises its latitude during that specified time.
REPRESENTATIVE SCALZI said that is correct. Prior to ADF&G and
statehood, the federal government only opened and closed seasons.
They had no mechanism for openings and closings by emergency
order. The North Pacific Management Council operates the same way
with quotas and dates. The ADF&G has been successful in their EO
provision by giving the department the latitude to open and close
as they see fit. For instance, if a management plan says a
fishery must be closed on August 6 and there is a late run of
fish there is now no available means to harvest those fish unless
there was an EO by the commissioner to re-open that fishery.
That's what this legislation is for and there would be specific
guidelines on how to do that. "He would have to take into
consideration the board's concern, it would not be for purposes
of reallocation, it would be for a specified time and would be
based on new information that was not previously available to the
board." This is just a clarification of that emergency order so
there isn't a future problem.
CHAIRMAN THERRIAULT said he has a better understanding of how the
department and commissioner operate within the stated fisheries
plan. This is for limited circumstances outside the plan where
the commissioner will be acting based on an emergency and yet the
intent section doesn't say that it's for limited use in those
emergency situations.
REPRESENTATIVE SCALZI replied it could be included if it made him
more comfortable.
CHAIRMAN THERRIAULT said he would talk to him further when they
discussed Senator Halford's proposed amendment.
The bill was held in committee.
ADJOURNMENT
There being no further business before the committee, the Senate
State Affairs Committee meeting was adjourned at 5:10 p.m.
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