Legislature(2015 - 2016)CAPITOL 120
03/26/2015 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB112 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 112 | TELECONFERENCED | |
HB 112-REPEAL CFEC; TRANSFER FUNCTIONS TO ADFG
10:05:22 AM
CHAIR STUTES announced that the order of business would be HOUSE
BILL NO. 112, "An Act repealing the Alaska Commercial Fisheries
Entry Commission and transferring its duties to a commercial
fisheries entry division established in the Department of Fish
and Game and the office of administrative hearings; and
providing for an effective date."
10:06:38 AM
REPRESENTATIVE KREISS-TOMKINS moved to adopt CSHB 112, labeled
29-LS0485\W, Kirsh/Bullard, 3/19/15, as the working document.
CHAIR STUTES objected for discussion.
10:07:09 AM
REID HARRIS, Staff, Representative Louise Stutes, Alaska State
Legislature, paraphrased from the following statement [original
punctuation provided]:
Explanation of Changed HB 112, Version A to Version W
Page 11, line 22:
Delete "and quasi-judicial"
Page 13, line 18:
Delete "hearing procedures"
Insert "hearings"
Page 13, lines 21 -24:
Delete all material and insert:
"(b) An administrative hearing on a contested
case under this chapter shall be conducted by the
office of administrative hearings (AS 44.64.010).
Notwithstanding AS 44.64.060(e), the office of
administrative hearings shall render the final
administrative decision."
Page 13, line 25, through page 14, line 7:
Delete all material.
Reletter the following subsection accordingly.
Page 14, lines 12- 17:
Delete all material and insert:
"administrative adjudication procedures of AS
44.62 (Administrative Procedure Act) [DO NOT]
apply to administrative hearings on contested
cases conducted by [ADJUDICATORY PROCEEDINGS OF]
the office of administrative hearings (AS
44.64.010) held under this chapter. Final
[COMMISSION EXCEPT THAT FINAL] administrative
determinations by the office of administrative
hearings [COMMISSION] are subject to judicial
review as provided in AS 44.62 .560 - 44.62.570."
Page 32, lines 26 - 27:
Delete "regulations adopted by the department
[COMMISSION] under 8 AS 16.43.110."
Insert "AS 16.43.110(b) [REGULATIONS ADOPTED BY
THE COMMISSION UNDER AS 16.43.110]."
Page 34, line 7:
Delete "department"
Insert "office of administrative hearings"
Page 34, line 16:
Delete "department"
Insert "office of administrative hearings"
Page 34, line 24:
Delete "department"
Insert "office of administrative hearings"
Page 34, lines 27 - 30:
Delete "The show cause hearing shall be
[CONDUCTED BEFORE A QUORUM OF COMMISSIONERS AND SHALL
BE] presided over by a hearing officer appointed by
the office of administrative hearings [COMMISSION] who
shall rule on the presentation of evidence and other
procedural matters."
Insert "The show cause hearing shall be conducted
and a decision shall be issued [BEFORE A QUORUM OF
COMMISSIONERS AND SHALL BE PRESIDED OVER BY A HEARING
OFFICER APPOINTED] by the office of administrative
hearings under AS 16.43.110(b) [COMMISSION WHO SHALL
RULE ON THE PRESENTATION OF EVIDENCE AND OTHER
PROCEDURAL MATIERS]."
Page 35, line 13:
Delete "department"
Insert "office of administrative hearings"
Page 42, following line 16:
Insert a new bill section to read:
Sec. 112. AS 44.62.330(a)(27) is amended to read:
(27) the Department of Fish and Game as to
functions relating to the protection of fish
and game under AS 16.05.871 or commercial
fisheries under AS 16.43;"
Renumber the following bill sections accordingly
10:07:25 AM
MR. HARRIS explained that Version W, defines which cases are
sent to the Office of Administrative Hearings and empowers the
Office of Administrative Hearings to make final adjudication
rulings themselves without the approval or oversight of the
Commissioner of the Department of Fish & Game. He referred to
Sec. 20, [AS 16.43.110(b)] page 13, [lines 16-24], which read:
(b) An administrative hearing on a contested case
under this chapter shall be conducted by the office of
administrative hearings (AS 44.64.010).
Notwithstanding AS 44.64.060(e), the office of
administrative hearings shall render the final
administrative decision.
10:08:09 AM
MR. HARRIS explained that the change reads that the Department
of Fish & Game will issue decisions on the 28 long-pending cases
until a decision is issued by the Department of Fish & Game and
that decision is contested, those cases will not go before the
Office of Administrative Hearings (OAH). He continued that all
approved permits will be handled in-house by the division,
however, OAH will take jurisdiction of contested cases.
10:08:47 AM
CHAIR STUTES removed her objection. Without further objection,
Version W was before the committee.
CHAIR STUTES opened public testimony.
10:09:20 AM
JULIANNE CURRY, United Fishermen of Alaska, said she represents
United Fishermen of Alaska (UFA) members, and its 36 member
organizations participating in fisheries throughout the state
and its off-shore federal waters. She expressed that every
member is impacted by the results of CSHB 112, and recommends
the committee hold the bill until the legislative audit is
complete, and until UFN's questions are answered.
REPRESENTATIVE MILLETT asked whether the Alaska Commercial
Fisheries Entry Commission (CFEC) has been effective in the last
three years, noting that minimal adjudications have been
completed.
MS. CURRY responded that it is difficult for her to look the
committee in the eye and say that the number of adjudications in
the last year is sufficient. However, UFA worked with CFEC to
develop a timeline as to how CFEC will implement changes within
its organization. She advised that UFA will continue to push on
CFEC to ascertain that the remaining 28 cases will be completed
as quickly as possible.
10:10:04 AM
REPRESENTATIVE MILLETT surmised that with better management
within the CFEC group the timeline would have been 25 years ago
when it started receiving cases. She expressed that this bill
is moving and it is a serious conversation about a group of
employees, and some commissioners, tasked with a job who have
been dragging their heels. She opined that the fishermen being
adjudicated must not be pleased with the outcomes of CFEC, and
asked whether fishermen have weighed in on the pace of the
adjudications and their frustrations.
MS. CURRY replied that not many fishermen or board members have
expressed frustration with the pace of the adjudications in that
they are focusing on their fishing business, tasks ahead, and
industry challenges as opposed to looking at CFEC because the
organization has functioned fairly well for their purposes.
United Fishermen of Alaska (UFA) supports the hiring of an
executive director for CFEC who will correct the inefficiencies
and operate as a healthier organization, she explained.
10:12:57 AM
REPRESENTATIVE MILLETT questioned why the Department of Fish &
Game (ADF&G) could not oversee the continued operation of CFEC.
MS. CURRY advised that the majority of members have expressed
keeping CFEC independent; however, UFA does not have an official
position until its questions are answered in the legislative
audit coming out in June. She offered that UFA will be working
with CFEC, and Representative Millett's office once the audit is
received to determine the path forward as to CSHB 112.
10:14:00 AM
JERRY MCCUNE, President, Cordova District Fishermen United
(CDFU), said he is the President of Cordova District Fishermen
United (CDFU) and United Fishermen of Alaska (UFA), and has
worked closely with the Alaska Commercial Fisheries Entry
Commission (CFEC) over 20 years. He pointed out that his
membership does not understand whether they will receive the
same services from ADF&G they are currently receiving from CFEC.
Regardless, he expressed, he is aware that CFEC clean-up is
necessary and stated it will be turned around and work
efficiently with an executive director hired to run the staff,
but ADF&G is not the place to house it. He said administrative
actions are responsive during the season and a timely defense is
important. He referred to an earlier incident on December 24,
when CFEC jumped in to defend the people in Yakutat when the IRS
seized set net permits because "we don't have a right, we have a
privilege to fish." He reminded the committee that CFEC worked
on the Carlson case, and noted that the Bristol Bay fishery has
also benefited from CFEC on many fronts. Although, he said he
could not defend the White Cards issue in the Cordova area that
issue is currently being cleaned-up, but some of those guys
fished for 20 years on a White Card. He advised [CFEC] has been
told to get all of the cases off as more cases are coming, and
the Board of Fisheries' research division is also being used as
a resource for legal issues. He opined that the division, as it
was created, is separate and it should stay out of politics,
have the right employees dedicated to the fishing industry, and
the integrity of the limited entry law.
10:17:06 AM
CHAIR STUTES referred to his reference to December 24, and asked
what year the permits were seized in Yakutat.
MR. McCUNE recalled the year "was awhile back" but recounted
that the permits were preserved and CFEC helped the fishermen.
He explained that a couple of Bristol Bay fishermen has passed
away, and their widows received the permits but did not realize
they owed taxes, so the IRS tried to seize those permits even
though it was their only income. He expressed that when this
law was created it wisely determined that corporations, banks,
and other entities, could not get these permits "and it had to
be in a person's name." He opined that CFEC has performed well
in protecting permits, individuals' livelihood, and keeping the
integrity of the law in place.
CHAIR STUTES added that Mr. McCune's testimony exemplifies the
point that at one point in time CFEC provided a valuable service
to fishermen, but it seems that CFEC has run its course which is
the reason for CSHB 112.
10:18:44 AM
REPRESENTATIVE MILLETT requested an explanation of a White Card.
MR. McCUNE deferred to a commissioner, but said when limited
entry was first created there were disputes on points, such as
Viet Nam veterans, et cetra, and while those cases were being
adjudicated, White Cards were issued to allow fishermen to
continue to operate while legal decisions were made.
REPRESENTATIVE MILLETT surmised that the December 24th incident
was in the 1980s.
MR. MCCUNE said somewhere in there.
10:19:45 AM
MARTIN LUNDY, Southeast Alaska Seiner's Association (SEAS),
provided testimony, paraphrasing from a prepared statement,
which read as follows [original punctuation provided]:
The Southeast Alaska Seiners Association (SEAS) is a
commercial fishing gear group comprised of more than
150 paying skipper and crew memberships, as well as
over 75 paying business members. SEAS represents the
interests of roughly 1,500 fishermen in the S01A
fishery, and their families and communities throughout
SE Alaska and beyond.
The combined permitting fees paid by the S01A permit
holders in our limited entry fishery contributed
nearly $400,000 to the CFEC budget this past year
alone.
10:20:45 AM
MR. LUNDY read from his prepared statement:
A significant amount in budgetary considerations and
we demand our voice be heard on decisions affecting a
governmental agency that has worked hard on our behalf
for years. SEAS is uniquely positioned to comment and
evaluate CFEC's job performance. Unlike some who have
used a snapshot in time to render judgement on an
entire agency's workings, the Southeast Alaska
Seiner's Association worked for years with the
commissioners and public servants of CFEC during the
buyback of permits in the SO1A fishery. This nearly a
decade long process involving multiple parties, one of
whom, a very important one is seated on the committee,
was and continues to be to this day the only buyback
program of its kind, not simply the state but in the
country. And CFEC handled it just as it had to be
done, in an exhaustive and exemplary manner. Chairman
Twomley and Commissioner's Brown and (indisc.) carry
on the great work of past commissioners such as, Frank
Holman, Mary McDowell, Peter Froehlich, and will
buyback some various fisheries in Cook Inlet, Bristol
Bay, and Southeast, on the horizon. This state needs
their full competence and expertise at work. We take
a dim view of the way in which the Commercial
Fisheries Entry Commission has been portrayed in some
corners, especially in light of our long-standing
interaction with the agency. We want our
commissioners, our Supreme Court of commercial
fisheries intact and able to move the agency forward
of their own volition. The independence of CFEC must
be maintained and this will not happen if HB 112 is
passed. We don't want CFEC being blown about in the
political winds of the day and while we are very happy
with the leadership and the men and women of ADF&G,
and all that they do to ensure the sustenance of our
fisheries for all manners of users, there is a special
place for Commercial Fisheries Entry Commission, and
it is on its own. Southeast Alaska Seiner's
Association opposes HB 112 and we encourage you to do
the same.
10:23:15 AM
AL BURCH, testifying in support of HB 112, described himself as
a dissenting member of the United Fishermen of Alaska's (UFA)
position, who has been involved in the fishing industry over 55
years, and participated on various boards and commissions. He
recounted helpful actions on the part of the CFEC, but urged
passage of HB 112 with ADF&G providing the support necessary.
He stated he was advised previously that when the skipper leaves
the boat, the $3,000 license leaves with him. He related
instances where he tried to move people off of the deck into the
wheelhouse and was told that even for one trip the deckhand
would have to pay $3,000 in order to step into the wheelhouse.
A bill was introduced to fix that, but it never left committee
and died and he could not get it introduced again. He expressed
that he hopes the committee will move this bill forward as it
will put emphasis behind dealing with the problem. He said
ADF&G would be quick in coming up to speed in how to deal with
this. He offered that he would like to see some way he can
bring someone off the deck without costing either the deck hand
or him $3,000 for one trip.
10:27:13 AM
PAUL SHADURA, II, said he is a life-long, third generation
commercial fisherman within the Cook Inlet waters. He advised
he has two CFEC Limited Entry set net salmon permits and there
are five in his family group. Today, he advised, he is
representing the South K Beach Independent Fishermen's
Association, and the association "adamantly" opposes
reconfiguring the Commercial Fisheries Entry Commission (CFEC)
into the "schizophrenic" Department of Fish & Game, and the
association is against allowing more authority to the
politically fractured Board of Fisheries. He referred to
Article VIII, Section 15, of the Alaska State Constitution,
which reads:
No exclusive right or special privilege of fishery
shall be created or authorized in the natural waters
of the State. This section does not restrict the power
of the State to limit entry into any fishery for
purposes of resource conservation, to prevent economic
distress among fishermen and those dependent upon them
for a livelihood and to promote the efficient
development of aquaculture in the State. [Amended
1972]
MR. SHADURA related that this section does not restrict the
power of the state to limit entry into any fishery for the
purposes of resource conservation, and to prevent economic
distress among fishermen and those dependent on them for a
livelihood. He advised it was ratified by the voters in 1972,
wherein the state could then institute a limited entry program
for distressed fisheries, and noted that an initiative to repeal
the law was rejected by the voters in 1976. Clearly, he stated,
the commercial fishing community feels strongly in his area that
to have an independent body within the state agency is a
blessing. He pointed out that the CFEC performed 143
adjudications last year, with 29,000 individual vessel permits
yearly. Commercial fishermen have a considerable investment,
some in the thousands of dollars to acquire the privilege to
harvest the state's fisheries resources. He pointed out that
the sports division director at ADF&G stated "the department can
handle it like a sports fishing license bought at the
neighborhood grocery," which is an example of the
misunderstanding of the importance to the commercial fishing
community. The change language, "the department shall regulate
entry into the commercial fisheries resources of the state,"
brings fear to his eyes, he said. Commercial fishermen pay
their way, and CFEC is completely funded by commercial fishing
participants' fees and, in fact, there is a surplus at present,
he advised. He expressed shock that this bill comes out of the
House Special Committee on Fisheries, a committee that
commercial fishermen have relied upon as a voice to express
changes they wish to accomplish within the state government.
10:30:52 AM
JAMI ROSS, Representative, Alaska Herring Seiners Association,
said he is a representative of the Alaska Herring Seiners
Association, has commercially fished in Alaska for 34 seasons,
owns eight limited entry licenses, and currently holds eight-ten
other non-limited entry licenses. He pointed out that the
Commercial Fisheries Entry Commission (CFEC) and the limited
entry system in Alaska is one of the models of fishery
management in the world as many other countries have looked to
this limited entry system as a way of ensuring sustainability in
their fisheries. He opined that CFEC has played an important
role in that Alaska's fisheries are the best in the world and
continues to be so. He expressed that he just heard about this
bill and that many fishermen throughout Homer have never heard
about this bill, and that its content is shocking. He expressed
that the biological aspect of fisheries is the Department of
Fish & Game, and the business aspect is CFEC. He said, he looks
at it as a separation of power and keeping those aspects of
fisheries separate is critical of which the committee has heard
from previous witnesses. He stressed that the potential for
politicizing the entry process is enormous within the ADF&G. He
said he knows the CFEC is working on limiting the fishery
currently, and has heard statements that they haven't limited
one in ten years. He referred to a fiscal analysis from the
Office of Administrative Hearings and that the commercial
fisheries are constantly in change and motion and to think that
Alaska is never going to limit entry of a fishery again is
extremely short sighted. He reiterated he is primarily a
herring fisherman and herring is going through some tough times
right now, but who is to say Alaska doesn't completely change
the herring fisheries in a short period, and change them from a
sacral fishery to a crude bait fishery. He pointed out that it
would require the experts at CFEC to re-organize the types of
limited entry licenses currently being held. He then related a
story having to do with the Sitka herring fishery. He described
this bill as potentially being one of the worst things that ever
happened to Alaska's commercial fishing industry, which is the
number two industry behind oil, and the largest public sector
employer in the State of Alaska.
10:34:52 AM
REPRESENTATIVE MILLETT requested the number of permits he is
holding.
MR. ROSS advised he holds eight limited entry licenses, and has
held up to eight-ten non-limited entry licenses over his career.
REPRESENTATIVE MILLETT asked what his limited entry permits are
for.
MR. ROSS replied that he holds four separate salmon licenses
purse seine, and four separate herring licenses purse seine. He
advised that an individual can only participate in one salmon
fishery per calendar year and he has fished pretty much every
area in the State of Alaska over his career.
10:36:04 AM
KEVIN BROOKS, Deputy Commissioner, Office of the Commissioner,
Department of Fish & Game (ADF&G), [Available to answer
questions.]
REPRESENTATIVE KREISS-TOMKINS asked how the department
anticipates handling buybacks should CSHB 112 pass.
MR. BROOKS responded that the department's research section
provides the economic analysis, the work, the enumeration of
permits, and reports it to the director of the division for
processing the endeavor. He acknowledged that he does not have
a clear answer as to how that might implicate the Office of
Administrative Hearings.
10:37:16 AM
REPRESENTATIVE MILLETT questioned whether he would remain
neutral in adjudicating licenses. She opined that the licensing
section within CFEC performs most of the work, which is a
neutral transfer of licenses. She pointed out that with
adjudications being in the Office of Administrative Hearings,
philosophically it wouldn't matter who the commissioner was, and
it wouldn't be politicized, or would it be politicized.
MR. BROOKS answered that he has worked for four-five
commissioners in ADF&G, and each commissioner comes in with
their own background and experiences, but each have brought an
objectivity to dispose of their responsibilities in a fair and
efficient manner. With regard to the permits, licensing, and
transfer functions, he said, staff would handle the requests and
should CSHB 112 pass, those same staff will be working in a
division within the department performing that same function.
Staff efficiencies are considered and the possibility exists for
peak period assistance within the agency. With regard to
appeals on a transfer, the first review of that is handled by
another staff within the division in looking for an
administrative remedy, possibly the transfer is denied it will
go to someone else "higher up" in the division. An appeal of
the second decision would go to the Office of Administrative
Hearings, he explained. Mr. Brooks said he spoke with a hearing
officer there and asked whether they could care for immediate
emergency transfers that risk the opportunity of a fisherman to
fish and opined that although there may be complications, it can
be done.
REPRESENTATIVE MILLETT queried whether there is a political
"twinge" on the administrative law judges that would prevent
them from being fair and appropriate in adjudicating hearings
based on commercial fishing. She asked whether there is a
philosophy that goes down to the administrative law judges.
MR. BROOKS expressed that the administrative law judges handle a
wide portfolio of cases and are expected to be fair and
impartial, which is the case here.
10:42:00 AM
REPRESENTATIVE MILLETT surmised there would be growing pains
within ADF&G, but also commonality between ADF&G and what CFEC
does. Although, she opined, its workload is very small now
except for the licensing section and questioned whether
administrative law judges could absorb the work currently being
performed by the commissioners.
MR. BROOKS replied yes.
REPRESENTATIVE MILLETT questioned whether there were cost saving
measures in the bill.
MR. BROOKS advised that the most obvious is that three
commissioners are replaced by a single director, and over time
as the department has an opportunity to review administrative
functions, licensing functions, IT support, et cetra, there are
efficiencies to be gained.
10:42:54 AM
REPRESENTATIVE MILLETT asked whether he sees diminishment for
commercial fishermen by [transferring the duties of CFEC] to
ADF&G, other than change being difficult. She advised that
Frank Cullman, from CFEC, assisted with the buyback bill, and
questioned whether Mr. Brooks foresees problems in organizing
and putting forward legislation if other commercial fishery
groups consider a commercial fisheries buyback.
MR. BROOKS answered that, today, he does not foresee a
diminishment for commercial fishermen, recognizing that he
cannot foresee every nuance or complication that could arise.
The commitment from the department is to address situations
appropriately as they arise. He stated there is an undoubted
wealth of information consisting within the three commissioners
that possess historical knowledge, and acknowledged that ADF&G
does not possess historical knowledge, but it does have CFEC's
body of work and the willingness to try to make it work.
10:44:13 AM
CHAIR STUTES clarified that not every case will be sent to the
Office of Administrative Hearings. She explained that within
the transfer process it will first go into a designated
individual to make the decision, and if that decision is not
satisfactory it then moves to the director to adjudicate. She
further explained that in the event the applicant does not
accept the decision it then moves to the Office of
Administrative Hearings, and the applicant has the option of
appealing that decision to the superior court.
10:44:55 AM
REPRESENTATIVE HERRON asked whether the department has a
position on CSHB 112.
MR. BROOKS replied that the department has not taken a formal
position on the bill, but believes it can keep the functions
working in an effective manner.
REPRESENTATIVE HERRON commented that the previous administration
had a uniform rule that it would not take a position on any
legislation, but this governor has given the latitude to
departments that they could take a position on legislation.
CHAIR STUTES closed public testimony after ascertaining that no
one further wished to testify.
10:46:26 AM
REPRESENTATIVE KREISS-TOMKINS recalled that Alpheus Bullard and
an attorney from the Department of Law (DOL) offered succinct
comments in a previous hearing, regarding the potential of a
case going the wrong way and setting a retroactive precedence.
He asked Mr. Bullard whether he had a further perspective.
10:47:20 AM
ALPHEUS BULLARD, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, responded it is not clear
what "retroactive precedent being invoked" means as the cases
the commission has heard are final, and contested decisions are
appealable to the superior court. He stated that should the
ADF&G assume the responsibilities of the commission and the
Office of Administrative Hearings hear contested cases, it is
not clear what possible affect that could have on cases
previously decided.
10:48:47 AM
BENJAMIN BROWN, Commissioner, Alaska Commercial Fisheries Entry
Commission (CFEC), advised that case law is available regarding
Supreme Court decisions addressing the issue of retroactivity
and the re-opening of a previously entirely limited fishery. He
pointed out that Chairman Twomley spoke about it and cited the
cases a week ago, and people may want to read those cases. He
opined that attorney William Milks, from the Department of Law
(DOL), would have provided answers to those specific questions.
He remarked that the hearings in this committee have not been
adequately addressed to gain an understanding of the legal
nuances relating to CFEC law in Alaska. He suggested the House
of Representatives take the time to review those specific
judicial legal issues before moving forward. He related that
CFEC is aware of justifiable questioning, however, the nuclear
option of destroying the agency in one fell swoop is not the
appropriate action.
10:51:01 AM
MR. BROWN continued that as a procedural matter, this bill was
introduced by Representative Seaton at the end of last session
and requested a legislative audit, which is underway. He asked
the committee whether it prefers to move on the bill prior to
the completion of the audit, and noted that audits are expensive
and it will provide a valuable objective assessment of the
commission, and the best way to move forward. The budget
situation as critical, he described, but is also an opportunity,
and while actions speak louder than words, so does haste makes
waste and this may be a hasty move. He expressed that making a
final policy decision is premature; however, it is important for
the commission to take the concerns seriously and provide
action. He pointed to a previous concern regarding moving a
deck hand to the wheelhouse and the [$3,000] fee, and suggested
that a bill to address fees may be more in line than abolishing
the agency. One point, he said, is a statutory requirement for
CFEC commissioners is that they are unable to hold any ownership
in a commercial limited entry permit or commercial fishing
business interest, yet the bill nullifies that statute and a
commissioner or director in ADF&G could own permits and effect
licensing/permits. Even if all of the contested matters go to
the Office of Administrative Hearings (OAH), the regulations to
limit a new fishery still must be drafted by someone, and it
will not be OAH, he opined.
10:54:25 AM
MR. BROWN referred to last week's amendment that deleted the
phrase "quasi-judicial and before a regulatory agency," he said,
and now it defines this "would be" division as a regulatory
division. He remarked that he does not know what a regulatory
division is, as departments adopt regulations, divisions
generally do not. It will be Mr. Brooks and his colleagues at
ADF&G who will adopt whatever regulations will set the exact
criteria for a newly limited fishery, and according to ADF&G's
fiscal note it does not presently envision that they would limit
a commercial fishery during the five years reflected on the
fiscal note. He pointed out, that it ignores the mandate of
Alaska's Limited Entry Act to consider limitation when Alaskans
come forward and advise that limitation needs to happen. In the
event adjudicatory decisions will not be made by this director,
who answers directly to the commissioner, the regulations that
drive that process must be adopted by ADF&G. He invited the
committee to review 20 AAC and the particular regulations
adopted in each and every fishery the commission previously
limited, as they are very specific and require expertise. He
stressed that the expertise could exist, but the potential for
conflict is ineradicable especially if those people are in a
position to continue owning limited entry permits. He described
that as a "pretty major flaw" in the bill but that it could be
cleaned up.
10:55:54 AM
MR. BROWN continued by reviewing the actions taken by the
commission last year, and said there were two initial issuance
limitations last year, plus one the beginning of this year, and
141 other cases completed.
He advised that limited transfers and permanent transfers are
not just ministerial as they are all contested to the extent
that someone has been told "no," when they want something. He
described it as a policy call for a staff person, paralegal, or
director making the yes or no decision before it goes to OAH.
He explained that it has implications, and the farther it moves
up the food chain the likelier it is that people might question
the extent to which they've been given due process and a fair
and just hearing. There is also the category of "miscellaneous
decisions" ...
CHAIR STUTES interjected that Mr. Brown can make a few comments,
but he has already had an opportunity to testify and she does
not want him to plead his case all over again.
MR. BROWN indicated that buybacks is a whole new body of work
for ADF&G to undertake, together with the reorganization of
fishery which is different from limiting a new fishery.
Currently, there are fishermen that would like to use a
different type of gear in a specific fishery in the state. He
opined that pressure will brought to bear on some of the
fisheries currently limited to make sure the right gear types
are being used for conservation reasons, and to ascertain the
economic viability of the fishery is as maximal as possible for
those participating in it. He pointed to an example of when the
Department of Community and Regional Affairs merged into the
Department of Commerce, Community, and Economic Development,
while attempting the difficult process of downsizing government.
He stated that a cost benefit analysis should be performed
[regarding CSHB 112].
10:59:01 AM
REPRESENTATIVE MILLETT dismissed the comparison of combining the
two above-stated departments in that it does not compare to the
transfer CFEC to ADF&G, and she takes offense to his comment of
"destroying the agency." The legislature, over the last 30
years, has seen a blatant dwindling of adjudicated cases and her
mission is to recognize an opportunity to provide efficiency.
She pointed out that appropriate firewalls can be established as
ADF&G has the ability to determine where conflict could arise.
She acknowledged that buybacks are complicated, and expressed
confidence that ADF&G would learn the process. She stressed
that her concern is providing good service to the fishermen and
keeping them whole, and maintained that CFEC is not effective in
the manner it once was and that change is needed. This is an
opportunity for CFEC to be absorbed into the ADF&G, with the
same by-laws in place, same missions, and the same outcomes, she
related. Realistic, streamlined expectations must be considered
in every department of this government, and this is not an easy
decision to come to but it is necessary, she opined.
11:02:56 AM
REPRESENTATIVE KREISS-TOMKINS referred to previous committee
hearing testimony regarding insulting decisions made currently
within CFEC from political influence. He asked whether he
described Mr. Brown's testimony correctly in that, "if the new
fisheries limited, regulations will need to be promulgated and
those regulations will have to go the commissioner's office and
because the commissioner's office, or people working in the
commissioner's office may, or may not, have interests in certain
commercial fisheries there is a potential for a conflict of
interest."
MR. BROWN pointed out there are two different potential areas of
concern in that there are many moving parts going on here and
this is the second hearing on a complex bill. The elimination
of the prohibition on having an interest in a limited entry
permit doesn't exist as the bill is currently written. He said,
"that's a really obvious example of something that is a
diminution in the prophylactic structure of the agency that
prevents the potential for conflict." He pointed to the larger
issue of fishermen defining the ADF&G as a political place. The
two issue are that no longer is there a prohibition on the
commissioner or director from actually holding a permit on the
value of which might be affected by the limitation of a new
fishery and the regulations adopted to limit that new fishery,
but the larger issue of "that commissioner oversees the head of
the biological one, the Division of Commercial Fisheries who
oversees all the managers out in the field." He pointed out
those managers may have issues that trickle up to the
commissioner, and trickle down to the division. He related that
the executive branch ethics act would remain in effect which
prohibits the taking or withholding official action in the
manner that can benefit one's self but, he described, it is a
generic tool as opposed to a prohibition on ownership of any
commercial fishing interests that currently exists.
REPRESENTATIVE KREISS-TOMKINS asked whether to say the short
answer to his question is yes.
MR. BROWN replied yes.
11:05:53 AM
REPRESENTATIVE MILLETT pointed out that commissioners are
appointed by the governor as are the three CFEC commissioners.
MR. BROWN said they are only removable for cause and there is a
due process set up for that, which is different as there is no
provision for removal for cause for the director or the
commissioner. The way it is currently structured, the governor
can fire the commissioner and the commissioner can fire the
director with no hearing and no reason, he stated. He said his
point is that the difference can be corrected, but the current
version of the legislation does not correct it.
11:06:49 AM
REPRESENTATIVE JOHNSON noted that conversations in this building
are taking place regarding every department and division of the
state as to the need for efficiencies. All fiscal note items
are being scrutinized and serious decisions must be made and, he
stressed, this is not a personal action. He pointed out that
holding the bill was requested; however, retaining it in the
first committee of referral would not be appropriate, and if it
is held anywhere it should be in Senate Rules where decisions
can be made at the end of the day. He encouraged the committee
to move the bill, gather information as the bill moves, and
position it to where a decision can be made based upon its
merits.
11:09:01 AM
REPRESENTATIVE KREISS-TOMKINS asked when the last commercial
fishery in Alaska was limited.
MR. BROWN responded in 2004-2005, which was a vessel based
limited fishery of the Weathervane Scallop, and Korean Hair
Crab. He advised that it is the only one that has reverted to
open access status so there is still a vessel based limited
entry system for Korean Hair Crab on the books; it is somewhat
of a virtual fishery because the conservation concerns never
left for that fishery to be open.
REPRESENTATIVE KREISS-TOMKINS asked about the fisheries
anticipated to be limited in the future.
MR. BROWN replied that when publically naming anticipated
limited fisheries it has the effect of encouraging people to
fish for history. He said there are three specific fisheries in
three different geographical areas that are at the point where
one or more of those would be limited in the period envisioned
within the fiscal note.
11:11:11 AM
REPRESENTATIVE JOHNSON asked whether the scallop and crab limit
was handled by the legislature.
MR. BROWN stated that it had to be done legislatively as it was
vessel-based as it was a dramatic departure from the skipper-
based limitation system, and required a new section of statutes.
11:11:40 AM
REPRESENTATIVE KREISS-TOMKINS recalled Mr. Brown's reference
that there is a fishery that may be changing the gear type used
and asked whether it is the Chatum Sable Fishery.
MR. BROWN explained that concerns have been expressed that using
long line creates more bycatch than pot, but they are separate
fisheries now. He said it is one of the unanswered question in
whether two existing fisheries can be merged, and that is the
area inquired about.
11:12:37 AM
REPRESENTATIVE KREISS-TOMKINS referred to the ability of the
ADF&G to insulate decisions and regulations from political
influence, or influence of interests within the department. He
asked how the department foresees being able to limit new
fisheries if required, or change the gear types used for
existing fisheries. He further asked Mr. Brooks to generally
respond to the issues raised by the previous witness regarding
creating insulation from different competing interests that may,
or may not, exist within ADF&G as the department proceeds with
the limiting of fisheries in Alaska.
MR. BROOKS deferred to the Commercial Fisheries Entry Division
Director as he is far more familiar with specific fisheries and
how they are prosecuted and limited. He added that with regard
to insulating, ADF&G currently operates under public scrutiny
and the ethics act in that no employee can take an action that
personally benefits them or a family member. He stressed that
the department's ethic's standard operating procedure is highly
focused, including people declaring outside employment, and a
department employee harvesting a species the department manages
or doesn't manage. The department's biologist have a lot of
interest in the resources they serve. He said that to suggest
the department is not going to insulate decisions is troubling
to him because the department goes to great lengths to ascertain
there are no conflicts. He pointed out that when CFEC was set
up these things had to be established, and ADF&G will bring it
in and care for it as well, and make sure it has firewalls in
place so there is no undue influence. He stressed that the
department goes to great length to ensure employees do not
violate public trust and will continue to do so if this bill is
passed.
11:15:59 AM
REPRESENTATIVE KREISS-TOMKINS asked Mr. Brooks to specifically
speak to the limiting of entries and creating regulations.
MR. BROOKS responded that the department has regulations, and
there are Board of Fish and Board of Game regulations. He
explained that the two boards generate a volume of regulations
in moving through the regulatory cycle every three years,
wherein all parts of the state are heard on fisheries, and now
there is a three-year cycle on the Board of Game. The
department has always looked at the board regulations separately
from the department regulations. He advised there are employees
that develop regulation packages so that expertise does exist
within the department, although it has not anticipated every
last detail of how it would perform CFEC regulations once CFEC
became a division. He stated that regulation packages are
performed within the department regarding board and department
regulations, and as far as limiting fisheries, he deferred to
others in the department.
11:17:48 AM
MR. HARRIS, with regard to Mr. Brown's comments, directed the
committee to Sec. 20, page 13, lines 20-23, which read:
(b) An administrative hearing on a contested case
under this chapter shall be conducted by the office of
administrative hearings (AS 44.64.010).
Notwithstanding AS 44.64.060(e), the office of
administrative hearings shall render the final
administrative decision.
MR. HARRIS reiterated that the language states OAH will make
decisions only on contested cases, so if the division cannot
handle it within the division, OAH will then take over
jurisdiction of the case. He pointed out that until that point
the division can say "yes." If the paralegal says yes, he
imagine they would sign off on it, if the division director says
yes, he imagines it would be signed off on, if it goes to OAH
and it says yes, it is still signed off on. He stated he does
not see how this is a short fall to fishermen as far as having
three commissioners make the decision and then go into the
superior court, or going through the same steps with the
Commercial Fisheries Entry Division. He said his second point
is found in Sec. 122, page 46, lines 8-10, which read:
TRANSITION ... Certificates, orders, and
regulations issued or adopted under authority of a law
amended or repealed by this Act remain in effect for
the term issued, or until revoked, vacated, or
otherwise modified under the provisions of this Act.
11:19:13 AM
MR. HARRIS referred to a statement by Mr. Brown and said, "due
to the division or OAH managing permit applications, courts
could interpret this as a change to the rules and; therefore,
they could open up past permit cases or entire limited entries."
Mr. Harris pointed out that the drafting attorney at Legislative
Legal and Research Services assured him that previous
adjudications cannot be reopened because of the transfer of
duties if CSHB 112 were to pass. He said the statute does not
prescribe a new direction for management of limited entry rather
it changes who makes the rulings on remaining and future cases.
He wrapped-up, paraphrasing from a prepared statement, which
read as follows [original punctuation provided]:
There is much testimony today in favor of continuation
of CFEC and it is understandable that fishermen are
apprehensive about the elimination of CFEC. The
commission has an excellent history of service to
fishermen through successful limited entries and
permit issuance when the immediate right to fish is at
stake, as in transfer and emergency transfer cases.
Representative Johnson, thank you, he brought up
essentially the hard line is the Department of Fish &
Game is going to see a budget cut of slightly more
than 10 percent this year, and the governor stated the
department will be seeing a 25 percent budget cut over
the next three years. These numbers go beyond budget
cuts, this is a restructuring of how the government,
including the Department of Fish & Game, functions.
All of the members present here put hard work into the
operating budget and you've seen the reductions
already. In order for the department to provide
necessary services to fishermen, the legislature needs
to look at some hard cuts and/or tradeoffs. House
Bill 112 is one way to ensure fishermen continue to
enjoy the use of a fragile resource and see continued
service in limited entry permit and vessel license
issuance.
11:21:04 AM
REPRESENTATIVE MILLETT commented that this is not the death of
the Commercial Fisheries Entry Commission, but rather an
opportunity to streamline under a new design. She expressed
that the caring of fishermen and services are expected to
continue and [the transfer] will not diminish commercial
fisheries. She reiterated Representative Johnson's comments
that this is conversation the legislature will have on every
division in every department of Alaska.
11:21:58 AM
REPRESENTATIVE MILLETT moved to report CSHB 112, labeled 29-
LS0485\W, Kirsh/Bullard, 3/19/15, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 112(FSH) moved from the House
Special Committee on Fisheries.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB112 ver W.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Explanation of Changes A to W.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Support CFEC 2014 Adjudications.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB112 Support 2007 CFEC Annual Report.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Oppose USAG.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Oppose Southeast Alaska Fuisherman's Alliance.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Oppose SEAS.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Oppose CDFU.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Oppose ATA.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Oppose ASA.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 Oppose UFA.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 ver E Legal Memo.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| HB 112 ver E.pdf |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |
| 1 HB 112 Exec Order.PDF |
HFSH 3/26/2015 10:00:00 AM |
HB 112 |