03/16/1994 09:10 AM Senate FIN

                                                                               
  SENATE BILL NO. 316                                                          
                                                                               
            An   Act   relating  to   commercial  fishing                      
            penalties.                                                         
                                                                               
  Co-chair  Pearce  directed that  SB  316 be  brought  on for                 
  discussion and  referenced CSSB  316 (Res),  a $10.4  fiscal                 
  note from  the Dept. of Public Safety, a $60.1 note from the                 
  Dept.  of  Law,  a  sectional  analysis, comments  from  the                 
  commercial fisheries entry commission, and information  from                 
  the Division of  Fish and Wildlife Protection  regarding the                 
  Bristol Bay Enforcement Program.                                             
                                                                               
  DAVE THOMPSON, aide  to Senate President Halford,  explained                 
  that  the  proposed  bill would  tighten  commercial fishing                 
  penalties and increase the burden of proof on fishermen with                 
  respect to evidentiary materials.   There has been no stated                 
  opposition to the bill up to this time.                                      
                                                                               
  Data compiled by the Dept. of Public Safety indicates that a                 
  small group of  fishermen are repeat  offenders who make  it                 
  difficult for honest  fishermen to ply their  trade.  During                 
  the 1993 fishing season in Bristol Bay,  90 repeat offenders                 
  were cited.  In  one case the history of  offenses went back                 
  to 1986.  That individual had broken the law 18 times.  Data                 
  supports the  contention that  habitual violators  cause the                 
  bulk of the  problems in commercial  fishing.  The  proposed                 
  bill targets those individuals.                                              
                                                                               
  Changes  contemplated  by  the  bill  would  add  three  new                 
  subsections:                                                                 
                                                                               
       1.   Allow  for  suspension  of  one  or  more  of  the                 
  individual's                                                                 
            commercial fishing privileges  for a period of  at                 
  least          two years.                                                    
                                                                               
       2.   Allow  for  suspension  of  one   or  more  of  an                 
  individual's                                                                 
            commercial fishing  privileges and licenses  for a                 
  period         of at least four years.                                       
                                                                               
       3.   Allow for  forfeiture  of  commercial  or  fishing                 
  privileges          and  licenses upon  a person's  fifth or                 
                      subsequent  conviction  in   a  ten-year                 
                      period.                                                  
                                                                               
                                                                               
  The bill also  doubles the fines  and changes the burden  of                 
  proof from a  "preponderance of"  to "clear and  convincing"                 
  evidence with respect  to fish found  on board a vessel  and                 
  whether or not they have been taken illegally.                               
                                                                               
  Data  gathered  by   the  Division  of  Fish   and  Wildlife                 
  Protection  Services  shows  that in  1993  the  Bristol Bay                 
  fishery had an all-time high  number of violations resulting                 
  in 509 criminal  charges.  Gross fines exceeded  $1 million.                 
  There was also more  than a 100% increase in  "closed water"                 
  cases, exceeding the previous high by more than 210 cases.                   
                                                                               
  In the course  of plea bargaining, misdemeanors  are reduced                 
  to violations.  When that occurs, there is no record of  the                 
  wrong-doing.    It is  thus  difficult to  effect subsequent                 
  fines, much less attach an individual's fishing permit.  The                 
  number  of cases  in  Bristol Bay  are increasing  while the                 
  fines  per case are decreasing.  Both judges and prosecutors                 
  are culpable.   A fine of  $1.0 against an illegal  catch of                 
  $10.0 creates an economic  incentive to break the law.   The                 
  Division of Fish and Wildlife Protection made a great effort                 
  to increase surveillance and "crack down on violators."                      
                                                                               
  Senator  Rieger inquired  concerning the  difference between                 
  "clear and convincing evidence" and a "preponderance" of the                 
  evidence.  Mr.  Thompson voiced  his understanding that  the                 
  change increases  the burden  of proof  upon the  fisherman.                 
  BILL  VALENTINE,  Director, Division  of  Fish  and Wildlife                 
  Protection, Dept. of Public  Safety, came before  committee.                 
  He explained that under a preponderance of the evidence, all                 
  the fisherman needs to  verify his argument is one  more bit                 
  of  evidence  than  the  department  has  in  proof  of  the                 
  violation.   An additional  crewman who  says that  the fish                 
  were not  caught in  violation would  tip the  scale in  his                 
  favor.  Much  more would be  needed to establish "clear  and                 
  convincing"  evidence.    The   fisherman  would  need   the                 
  testimony of  workers on  a tender,  other fishermen,  etc.,                 
  individuals other than those crewing his boat.                               
                                                                               
  Senator Rieger  noted that language speaks not  only to fish                 
  found aboard a  vessel but also  fish "found at the  fishing                 
  site."  He  then  inquired  as to  the  extent  of  existing                 
  language.   Mr.  Valentine  advised  that  current  language                 
  speaks to "the  preponderance at  the site or  on board  the                 
  vessel."  He added that he had not been party to  a scenario                 
  in  which a  whole  season's worth  of  fish would  be at  a                 
  particular site.   In the  Bristol Bay salmon  fishery, fish                 
  are generally delivered daily to preserve freshness.                         
                                                                               
  Senator Rieger  next pointed to language in Sec. 3, relating                 
  to forfeiture of fish taken  as a result of commission of  a                 
  violation.    He  then  asked  if   failure  to  have  one's                 
  identification  aboard   the  vessel   would  constitute   a                 
  violation.   Mr. Valentine acknowledged that it would be but                 
                                                                               
                                                                               
  stressed that lower-level, small  violations are covered  by                 
  the uniform bail  schedule.   That is similar  to a  traffic                 
  ticket  involving an  established fine  and "mail-in  bail."                 
  Those  offenders  cannot  be  charged  at  a  higher  level.                 
  Senator Rieger  voiced his  understanding that  uniform bail                 
  provisions  would   override  forfeiture.     Mr.  Valentine                 
  concurred.    He clarified  that no  forfeitures or  loss of                 
  fishing  privileges are  associated  with small  violations.                 
  That  is  the   distinction  between   a  violation  and   a                 
  misdemeanor.   Senator  Rieger  referenced  Sec. 3  language                 
  calling  for  forfeiture  for  violations  and  again raised                 
  questions.   Mr. Valentine  explained that  the language  in                 
  question relates to higher violations for commercial fishing                 
  in closed waters, commercial fishing during a closed period,                 
  etc.  Those violations have a direct impact on the fishery.                  
                                                                               
  GEORGE  UTERMOHLE,  Legislative  Counsel,   Legal  Services,                 
  Legislative Affairs Agency, came before  committee.  He said                 
  that preponderance  of the  evidence standards  require that                 
  the  evidence be  more  likely than  not  that the  evidence                 
  supports  a  particular conclusion.    Clear  and convincing                 
  evidence  is a  higher standard requiring  more than  just a                 
  reasonable probability.  It must create in the fact finder a                 
  clear conviction that the facts exist.  The highest standard                 
  is "beyond a reasonable doubt."                                              
                                                                               
  Senator  Jacko MOVED that CSSB 316 (Res) pass from committee                 
  with individual recommendations.   No objection having  been                 
  raised, CSSB 316 (Res) was REPORTED  OUT of committee with a                 
  $10.4 fiscal  note from  the Dept.  of Public  Safety and  a                 
  $60.1 note  from the  Dept. of  Law.   Co-chairs Pearce  and                 
  Frank  and  Senators  Jacko,  Kelly,  and Sharp  signed  the                 
  committee report with a "do  pass" recommendation.  Senators                 
  Kerttula and Rieger signed "no recommendation."