HB 41: "An Act relating to management of enhanced stocks of shellfish; authorizing certain nonprofit organizations to engage in shellfish enhancement projects; relating to application fees for salmon hatchery permits and shellfish enhancement project permits; allowing the Alaska Seafood Marketing Institute to market aquatic farm products; and providing for an effective date."
00 HOUSE BILL NO. 41 01 "An Act relating to management of enhanced stocks of shellfish; authorizing certain 02 nonprofit organizations to engage in shellfish enhancement projects; relating to 03 application fees for salmon hatchery permits and shellfish enhancement project permits; 04 allowing the Alaska Seafood Marketing Institute to market aquatic farm products; and 05 providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 16.05.730(c) is amended to read: 08 (c) The board may 09 (1) consider the need of enhancement projects authorized under 10 AS 16.10.400 and contractors who operate state-owned enhancement projects under 11 AS 16.10.480 to harvest and sell fish produced by the enhancement project that are not 12 needed for brood stock to obtain funds for the purposes allowed under AS 16.10.450 13 or 16.10.480(d);
01 (2) consider the need of projects authorized under AS 16.12.010 to 02 harvest and sell shellfish that are not needed for brood stock to obtain funds for 03 the purposes allowed under AS 16.12.080; 04 (3) [. THE BOARD MAY] exercise its authority under this title as it 05 considers necessary to direct the department to provide a reasonable harvest of fish, in 06 addition to the fish needed for brood stock, to an enhancement project to obtain funds 07 for the enhancement project if the harvest is consistent with sustained yield of wild 08 fish stocks; and 09 (4) [. THE BOARD MAY] adopt a fishery management plan to 10 provide fish to an enhancement project to obtain funds for the purposes allowed under 11 AS 16.10.450, [OR] 16.10.480(d), or AS 16.12.080. 12 * Sec. 2. AS 16.10.400(b) is amended to read: 13 (b) The application for a permit under this section shall be on a form 14 prescribed by the department and be accompanied by an application fee in the 15 amount determined under (h) of this section [$100]. The commissioner may waive 16 the submission of an application for a permit to operate a hatchery under 17 AS 16.10.480. 18 * Sec. 3. AS 16.10.400 is amended by adding a new subsection to read: 19 (h) The department shall establish by regulation an application fee under this 20 section in an amount that provides for the total amount of fees collected under (b) of 21 this section to approximately equal the department's actual costs of processing permit 22 applications under this chapter. The department shall annually review the fee level to 23 determine whether the department's costs of processing permit applications under this 24 chapter are approximately equal to the fees collected. If the review indicates that fees 25 collected and these costs are not approximately equal, the department shall adjust the 26 application fee by regulation. In January of each year, the department shall report the 27 fee level and any revision made for the previous year under this subsection to the 28 office of management and budget. 29 * Sec. 4. AS 16 is amended by adding a new chapter to read: 30 Chapter 12. Shellfish Enhancement Projects. 31 Sec. 16.12.010. Permits for shellfish enhancement projects. (a) Subject to
01 the restrictions imposed by statute or regulation under this chapter, the commissioner 02 may issue a permit to a nonprofit corporation organized under AS 10.20 for a project 03 to 04 (1) augment the yield and harvest of shellfish indigenous to state water 05 above naturally occurring levels by natural, artificial, or semiartificial production 06 systems; 07 (2) rehabilitate a shellfish stock that is indigenous to state water by 08 restoring it to its natural levels of productivity; or 09 (3) increase the area of productive natural shellfish habitat. 10 (b) Each applicant for a permit under this section shall apply in a format 11 prescribed by the department and pay an application fee in the amount determined 12 under (f) of this section. 13 (c) A permit issued under this section is nontransferable. If a permit holder 14 sells or leases a facility for which a permit has been issued under this section, the new 15 operator shall apply for a permit under this section. 16 (d) The commissioner shall consult with and solicit recommendations from 17 federal and state agencies and technical experts in the relevant area regarding permit 18 stipulations and issuance. 19 (e) The commissioner may not issue a permit under this section unless the 20 commissioner determines that the action would result in substantial public benefits and 21 would not jeopardize natural stocks. 22 (f) The department shall establish by regulation an application fee under this 23 section in an amount that provides for the total amount of fees collected under (b) of 24 this section to approximately equal the department's actual costs of processing permit 25 applications under this chapter. The department shall annually review the fee level to 26 determine whether the department's costs of processing permit applications under this 27 chapter are approximately equal to the fees collected. If the review indicates that fees 28 collected and these costs are not approximately equal, the department shall adjust the 29 application fee by regulation. In January of each year, the department shall report the 30 fee level and any revision made for the previous year under this subsection to the 31 office of management and budget.
01 Sec. 16.12.020. Hearings before permit issuance. (a) At least 30 days before 02 the issuance of a permit under AS 16.12.010, the department shall hold a public 03 hearing in a central location in the vicinity of the proposed release of shellfish. 04 (b) Notice of the hearing shall be published in a newspaper of general 05 circulation once a week for three consecutive weeks, with completion of the notice at 06 least five days before the hearing. 07 (c) The department shall conduct the hearing. The applicant shall present a 08 plan for the proposed project describing the capacity of the facility and other relevant 09 facts that may be of interest to the department or to the public. The department shall 10 give interested members of the public an opportunity to be heard. 11 (d) The department shall record and consider objections and recommendations 12 offered by the public at the hearing conducted under this section. The department shall 13 respond in writing, not later than 30 days after the hearing is held, to a specific 14 objection offered by a member of the public at the hearing. 15 Sec. 16.12.030. Conditions of a permit. The department shall require, in a 16 permit issued under this chapter, that the permit holder 17 (1) procure shellfish from the department or a source approved by the 18 department; 19 (2) place shellfish only in water of the state specifically designated in 20 the permit; 21 (3) not procure genetically modified shellfish or place genetically 22 modified shellfish into the water of the state; 23 (4) not resell or transfer shellfish sold to a permit holder by the state or 24 by another party approved by the department; 25 (5) not release shellfish before approval by the department, and, for 26 purposes of pathological examination and approval, that the permit holder notify the 27 department at least 15 days before the date of the proposed release of shellfish; 28 (6) destroy diseased shellfish in a specific manner and location 29 designated by the department; 30 (7) harvest shellfish only at specific locations and under specific 31 conditions as designated by the department;
01 (8) make surplus shellfish available for sale first to the department and 02 then, after inspection and approval by the department, to other permit holders 03 operating under this chapter; 04 (9) provide a copy of the sales transaction to the department if surplus 05 shellfish are sold by a permit holder to another permit holder; 06 (10) release shellfish in an area where the shellfish will be available to 07 traditional fisheries, subject to the provisions of this chapter and regulations adopted 08 under this chapter. 09 Sec. 16.12.040. Alteration, suspension, or revocation of permit. (a) If a 10 permit holder fails to comply with the conditions and terms of the permit issued under 11 AS 16.12.010 within a reasonable period after notification by the department of 12 noncompliance, the permit may be suspended or revoked, in the discretion of the 13 commissioner. 14 (b) If the commissioner finds that the operation of the permitted activity is not 15 in the best interests of the public, the commissioner may alter the conditions of the 16 permit to mitigate the adverse effects of the operation or, if the adverse effects are 17 irreversible and cannot be mitigated sufficiently, initiate a termination of the operation 18 under the permit over a reasonable period under the circumstances, not to exceed four 19 years. During the period that the operation is being terminated, the permit holder may 20 harvest shellfish under the terms of the permit but may not release additional shellfish. 21 Sec. 16.12.050. Regulations relating to released shellfish. (a) Shellfish 22 released into the natural water of the state by a permit holder under this chapter are 23 available to the people for common use and are subject to regulation under applicable 24 law in the same way as shellfish occurring in their natural state except when they are 25 in a special location designated by the department for harvest by a permit holder. 26 (b) The Board of Fisheries may, after the issuance of a permit by the 27 commissioner, amend by regulation adopted in accordance with AS 44.62 28 (Administrative Procedure Act) the terms of the permit relating to the source of wild 29 brood stock, the harvest of shellfish by permit holders, and the specific locations 30 designated by the department for harvest. The Board of Fisheries may not adopt a 31 regulation or take an action regarding the issuance or denial of a permit required in
01 this chapter. 02 Sec. 16.12.060. Department assistance and cooperation. (a) Before and after 03 permit issuance under AS 16.12.010, the department shall make reasonable efforts, 04 within the limits of time and resources, to advise and assist applicants or permit 05 holders, as appropriate, as to projects under AS 16.12.010, including the planning, 06 construction, and operation of facilities. 07 (b) Nothing in this section exempts an applicant or permit holder from 08 compliance with this chapter or from compliance with the regulations or restrictions 09 adopted under this chapter. 10 Sec. 16.12.070. Brood stock sources. (a) The department shall approve the 11 source and number of shellfish taken for use as brood stock under this chapter. 12 (b) Where feasible, a permit holder shall first take shellfish from stocks native 13 to the area in which the shellfish will be released. 14 Sec. 16.12.080. Sale of shellfish; use of proceeds; quality and price. (a) A 15 permit holder that sells shellfish harvested from the natural water of the state, or sells 16 shellfish to another permit holder under this chapter, shall use the funds only for 17 reasonable operating costs, including debt retirement, expanding its facilities, a project 18 permitted under AS 16.12.010, shellfish research, or to assist in meeting the 19 department's costs of managing the affected fisheries for the area in which the 20 shellfish release is located. 21 (b) A permit holder shall ensure that shellfish harvested and sold for human 22 consumption are of comparable quality to shellfish harvested by commercial fisheries 23 in the area and are sold at prices commensurate with the current market. 24 Sec. 16.12.090. Cost recovery fisheries. (a) A permit holder may harvest 25 shellfish for a project under AS 16.12.010 in a special harvest area through 26 (1) agents or employees of or persons under contract with the permit 27 holder as provided under a permit from the department or regulations of the Board of 28 Fisheries; or 29 (2) the common property fishery under this section. 30 (b) A permit holder may, by a majority vote of the membership of the permit 31 holder's board of directors, elect to harvest shellfish in a special harvest area
01 established for a project under AS 16.12.010 through the common property fishery. At 02 the request of the permit holder and if the commissioner determines that there are no 03 allocative issues involved, and after reasonable consultation with affected commercial 04 fishermen, the commissioner may adopt regulations governing the harvest of shellfish 05 in a special harvest area through a common property fishery. The regulations must 06 specify the terms, conditions, and rules under which the common property fishery in 07 the special harvest area shall be conducted, including requirements for holding 08 inspections and reporting of harvests and sales of shellfish taken in the special harvest 09 area. Following adoption of regulations by the department, before January 15 of each 10 year, the permit holder's board, by a majority vote of the board's membership, may 11 determine whether the permit holder will operate under the regulations adopted under 12 this subsection during the current calendar year and shall notify the department if the 13 permit holder intends to operate under the regulations adopted under this subsection. 14 The Board of Fisheries may adopt regulations under AS 16.05.251 regarding a 15 fisheries management plan governing operations under this subsection in a special 16 harvest area, including allocation plans. Participation in the fishery must be open to all 17 interim-use permit and entry permit holders who hold permits to operate a type of gear 18 that may be used in the fishing district in which the special harvest area is located if 19 that type of gear is authorized by regulation to be used in the special harvest area. An 20 interim-use permit holder or an entry permit holder who takes shellfish in a common 21 property fishery in a special harvest area may sell the shellfish to a fish buyer or 22 processor who is licensed to do business in the state. 23 (c) As a condition of participation in a common property shellfish fishery in a 24 special harvest area under this section, a commercial fisherman who participates in the 25 fishery is subject to the payment of the assessment levied under (d) of this section on 26 the projected value of the shellfish or on the pounds of shellfish harvested. The 27 assessment is levied on the shellfish that the commercial fisherman takes in the special 28 harvest area and sells to a licensed buyer. The buyer of the shellfish must be licensed 29 under AS 43.75, and the buyer shall collect the assessment on shellfish taken in a 30 special harvest area at the time of purchase and remit the assessment to the 31 Department of Revenue in accordance with regulations adopted by the Department of
01 Revenue. 02 (d) The Department of Revenue may, by regulation, annually by March 1, set 03 the assessment levied on shellfish taken in a special harvest area in consultation with 04 the Department of Commerce, Community, and Economic Development, the permit 05 holder, and representatives of affected commercial fishermen. The assessment must 06 provide sufficient revenue to cover debt service, reasonable operating expenses, 07 reasonable maintenance expenses, and development or maintenance of a reserve fund 08 up to 100 percent of annual operating costs of the permit holder's project under 09 AS 16.12.010. In setting the assessment, the Department of Revenue shall consider the 10 estimated harvest of shellfish in the special harvest area, the projected price to be paid 11 for shellfish in the region, the amount of the existing reserve held by the permit holder, 12 and the amount by which the assessment collected in previous years exceeded or fell 13 short of the amount anticipated to be collected. The assessment may not exceed 50 14 percent of the value of the shellfish. The Department of Revenue may levy the 15 assessment as a percentage of the projected value of the shellfish harvested in the 16 special harvest area or as a flat rate on each pound of shellfish harvested in the area, to 17 the nearest whole cent. 18 (e) The Department of Revenue shall deposit the assessments collected under 19 this section in the general fund. The legislature may appropriate the funds collected 20 under this section to the permit holder who is carrying out a project under 21 AS 16.12.010, including the operation of a facility, in the special harvest area in which 22 the assessment was levied. A permit holder shall use funds appropriated under this 23 subsection for the purposes set out under AS 16.12.080(a). The legislature may also 24 appropriate funds collected under this section to the Department of Revenue for costs 25 incurred by the Department of Revenue under this section. 26 (f) A person who violates a regulation adopted under (b) of this section is 27 guilty of a violation under AS 16.05.722 or a misdemeanor under AS 16.05.723. A 28 person who violates a regulation adopted by the Department of Revenue under (c) of 29 this section is guilty of a class A misdemeanor. 30 (g) In this section, 31 (1) "special harvest area" means an area designated by the
01 commissioner or the Board of Fisheries where shellfish may be harvested by permit 02 holders under this chapter and by the common property fishery; 03 (2) "value" has the meaning given in AS 43.75.290. 04 Sec. 16.12.100. Inspection by the department. (a) A permit holder shall 05 allow the department to inspect the permit holder's facility for a project under 06 AS 16.12.010 at any time the facility is in operation. The department shall conduct the 07 inspection in a reasonable manner. 08 (b) The department shall bear the cost of an inspection performed under this 09 section. 10 Sec. 16.12.110. Annual report. A person who holds a permit under this 11 chapter shall submit an annual report not later than December 15 to the department. 12 The report must be made on a form prescribed by the department and contain 13 information pertaining to 14 (1) species; 15 (2) the brood stock source; 16 (3) the number, age, gender, and size of spawners; 17 (4) the number of eggs collected and juveniles produced; and 18 (5) the number, age, gender, and size of harvested shellfish attributable 19 to releases by the permit holder. 20 Sec. 16.12.199. Definitions. In this chapter, 21 (1) "facility" means a hatchery as defined in AS 16.40.199, a facility 22 for the release of shellfish into natural water of the state, or a facility for a project 23 under AS 16.12.010; 24 (2) "genetically modified shellfish" means shellfish whose genetic 25 structure has been altered at the molecular level by recombinant DNA and RNA 26 techniques, cell fusion, gene deletion or doubling, introduction of exogenous genetic 27 material, alteration of the position of a gene, or other similar procedure using artificial 28 processes; 29 (3) "shellfish" has the meaning given in AS 16.40.199. 30 * Sec. 5. AS 16.43.400(a) is amended to read: 31 (a) In addition to entry permits, interim-use permits, and educational permits,
01 the commission may issue special harvest area entry permits to 02 (1) holders of private, nonprofit hatchery permits issued by the 03 Department of Fish and Game under AS 16.10.400 - 16.10.475 for salmon; and 04 (2) nonprofit organizations holding a permit under AS 16.12 for a 05 shellfish enhancement project. 06 * Sec. 6. AS 16.43.430 is amended to read: 07 Sec. 16.43.430. Authorized gear. For the purposes of harvesting salmon or 08 shellfish, a special harvest area entry permit holder may employ any fishing gear 09 designated as legal gear in the applicable special harvest area by the Board of 10 Fisheries. 11 * Sec. 7. AS 16.51.090 is amended to read: 12 Sec. 16.51.090. Powers of board. In carrying out the powers of the institute, 13 the board may 14 (1) adopt, alter, and use a corporate seal; 15 (2) prescribe, adopt, amend, and repeal bylaws; 16 (3) sue and be sued in the name of the institute; 17 (4) enter into any agreements necessary to the exercise of its powers 18 and functions; 19 (5) cooperate with a public or private board, organization, or agency 20 engaged in work or activities similar to the work or activities of the institute, including 21 entering into contracts for joint programs of consumer education, sales promotion, 22 quality control, advertising, and research in the production, processing, or distribution 23 of seafood and aquatic farm products; 24 (6) conduct, or contract for, scientific research to develop and discover 25 health, dietetic, or other uses of seafood and aquatic farm products harvested and 26 processed in the state; 27 (7) receive contributions of money from persons; 28 (8) establish offices in the state and otherwise incur expenses 29 incidental to the performance of its duties; 30 (9) appear on behalf of the institute before boards, commissions, 31 departments, or other agencies of municipal, state, or federal government;
01 (10) acquire, hold, lease, sell, or otherwise dispose of property, but 02 such property is limited to that which is necessary to the administrative functioning of 03 the office of the institute; 04 (11) establish and maintain one or more bank accounts for the 05 transaction of the institute's business; 06 (12) prepare market research and product development plans for the 07 promotion of any species of seafood and aquatic farm product and their by-products 08 that may be harvested in the state and processed for sale; 09 (13) establish committees related to the marketing of salmon and 10 salmon products; the board shall, to the extent practicable, appoint equal numbers of 11 seafood processors and persons engaged in commercial fishing to the committees. 12 * Sec. 8. AS 16.51.110 is amended to read: 13 Sec. 16.51.110. Prohibited promotions. The board may not promote or make 14 a contract that promotes seafood or aquatic farm products by 15 (1) geographic origin other than from the state generally; 16 (2) geographic region of the state; or 17 (3) specific brand name. 18 * Sec. 9. AS 16.51.180(7) is amended to read: 19 (7) "seafood" means finfish, shellfish, and fish by-products, including 20 [BUT NOT LIMITED TO] salmon, halibut, herring, flounder, crab, clam, cod, shrimp, 21 and pollock, but does not include aquatic farm products [AS DEFINED IN 22 AS 16.40.199]. 23 * Sec. 10. AS 16.51.180 is amended by adding a new paragraph to read: 24 (8) "aquatic farm product" has the meaning given in AS 16.40.199. 25 * Sec. 11. AS 17.20.049(b)(1) is amended to read: 26 (1) "farmed fish" means fish that is propagated, farmed, or cultivated 27 in a facility that grows, farms, or cultivates the fish in captivity or under positive 28 control but that is not a salmon hatchery that is owned by the state or that holds a 29 salmon hatchery permit under AS 16.10.400 or a shellfish facility that is permitted 30 under AS 16.12.010; in this paragraph, "positive control" has the meaning given in 31 AS 16.40.199;
01 * Sec. 12. AS 37.05.146(c) is amended by adding new paragraphs to read: 02 (80) fees collected by the Department of Fish and Game under 03 AS 16.10.400; 04 (81) fees collected by the Department of Fish and Game under 05 AS 16.12.010. 06 * Sec. 13. AS 43.20.012(a) is amended to read: 07 (a) The tax imposed by this chapter does not 08 (1) apply to an individual; 09 (2) apply to a fiduciary; 10 (3) for a tax year beginning after December 31, 2012, apply to an 11 Alaska corporation that is a qualified small business and that meets the active business 12 requirement in 26 U.S.C. 1202(e) as that subsection read on January 1, 2012; [OR] 13 (4) for a tax year beginning after June 30, 2007, apply to the income 14 received by a regional association qualified under AS 16.10.380 or nonprofit 15 corporation holding a hatchery permit under AS 16.10.400 from the sale of salmon or 16 salmon eggs under AS 16.10.450 or from a cost recovery fishery under AS 16.10.455; 17 or 18 (5) apply to income received by a nonprofit corporation holding a 19 permit under AS 16.12.010 from the sale of shellfish under AS 16.12.080 or from 20 a cost recovery fishery under AS 16.12.090. 21 * Sec. 14. AS 43.20.012(a), as repealed and reenacted by sec. 2, ch. 55, SLA 2013, is 22 amended to read: 23 (a) The tax imposed by this chapter does not apply to 24 (1) an individual; 25 (2) a fiduciary; [OR] 26 (3) the income received by a regional association qualified under 27 AS 16.10.380 or nonprofit corporation holding a hatchery permit under AS 16.10.400 28 from the sale of salmon or salmon eggs under AS 16.10.450 or from a cost recovery 29 fishery under AS 16.10.455; or 30 (4) the income received by a nonprofit corporation holding a 31 permit under AS 16.12.010 from the sale of shellfish under AS 16.12.080 or from
01 a cost recovery fishery under AS 16.12.090. 02 * Sec. 15. AS 43.76.390 is amended to read: 03 Sec. 43.76.390. Exemption. AS 43.76.350 - 43.76.399 do not apply to salmon 04 or shellfish harvested under a special harvest area entry permit issued under 05 AS 16.43.400. 06 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 APPLICABILITY. AS 16.10.400(b), as amended by sec. 2 of this Act, applies to 09 salmon hatchery permits applied for on or after the effective date of sec. 2 of this Act. 10 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 TRANSITION: REGULATIONS. The Department of Fish and Game may adopt 13 regulations necessary to implement this Act. The regulations take effect under AS 44.62 14 (Administrative Procedure Act), but not before the effective date of the law implemented by 15 the regulation. 16 * Sec. 18. Section 17 of this Act takes effect immediately under AS 01.10.070(c). 17 * Sec. 19. Section 14 of this Act takes effect on the effective date of sec. 2, ch. 55, SLA 18 2013.