Legislature(1997 - 1998)
03/30/1998 03:40 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 285 - POINT SYSTEM FOR COMMERCIAL FISH VIOLATION CHAIRMAN HALFORD announced HB 285 to be up for consideration. REPRESENTATIVE IVAN, sponsor, said HB 285 addresses some concerns about illegal fishing activities in his district and others. It seeks to protect honest fishermen. It's been stated that these illegal activities have become a philosophy among some fishermen and they are just the cost of doing business if they are cited for it. The bill establishes a point system against the commercial fishing permit holder for convictions of Title 16 commercial fishing laws. Twelve or more within a 36 month period would result in a one year suspension by the Commercial Fishery Entry Commission, 16 or more within a 48-month period results in two- years, and progresses up to 18 points or more in a 60-month period which results in a three-year suspension of the permit. The assessment of points, the suspension process, noticing, etc. are provided for in the bill. Sections 5 - 9 were suggested by the Commercial Fisheries Entry Commission and are a revision of current statutes. References to forfeiture have been deleted, because it is believed suspension and revocation of fishing privileges by the Entry Commission are more consistent with the legislature's prior determination that fishing privileges are use privileges and not property. This legislation is strongly supported by the Department of Public Safety and the Commercial Fisheries Entry Commission. He has worked with the lending institutions, namely CFAB and the Division of Investments, the Commercial Fisheries Entry Commission, Public Safety, and attorneys well-versed in commercial fishing laws. Number 165 SENATOR LEMAN asked if he had worked with the Division of Investments on loan obligations and valuation of the permits since the January 26, 1998 letter was written. REPRESENTATIVE IVAN answered that they were concerned because as a lending institution, they make loans secured by pledges of limited entry permits. Pursuing the individual permit holder alleviated some of their concerns. CHAIRMAN HALFORD noted when the legislature tried this a few years ago, they attached it to the permits and it was successful in getting out of the Senate, but it died in the House. MR. TOM WRIGHT, Staff to Representative Ivan, said initially the points were going to be attached to the permit, but Mr. Cameron Jenson, an attorney well-versed in commercial fishing lending laws, said if a permit was going to be revoked after a certain number of points accumulated, they ran into the questions of takings, due process, and equal protection laws. They would have had to rewrite a number of statutes for CFAB and the Division of Investments in order to do the revocation. That's why they came up with the suspension for one, two or three years with the thought being if someone has their permit suspended for a two-year period, they are going to get out of the fishery, because they couldn't afford to sit on the beach for two years. SENATOR LEMAN said he thought this was a good idea, but he is concerned about an accumulation of points for a series of pretty minor violations, like trailer buoys. MR. WRIGHT said they had discussed this with the Department of Public Safety and they usually take those things into consideration before issuing a citation. SENATOR LEMAN asked in the case of trailer buoys, each buoy wouldn't be a separate violation. MR. WRIGHT answered that would be his impression from conversations with Colonel Glass. Number 267 CHAIRMAN HALFORD asked if the individuals who have to "sit out" would have an opportunity to do an emergency transfer of their permit, and then crew on that boat. MR. WRIGHT answered if the license is suspended, they cannot transfer it. CHAIRMAN HALFORD asked what happens if they have a violation, but not a conviction and while they are waiting to go to court, they transfer the permit. MR. BRUCE TWOMLEY, Commercial Fisheries Entry Commission, answered if he hasn't reached the point where the permit is suspended, and with it the transferability of the permit which would stop that process cold, he would need to make an independent showing that he is qualified for an emergency transfer under the existing law. He could get one with that showing. One of the provisions in the bill may address that in part. If there is a violation during an emergency transfer, the demerit points are assessed against both the permit holder and the transferee. CHAIRMAN HALFORD said there is a lot of time after a violation before a sentence or final disposition during which a person could just do a straight transfer to his brother or his best friend, or to whomever. He asked how can they could stop that. MR. TWOMLEY answered the points are going to track the individual, so if he's caught in a subsequent violation, the points are going to build up against him. He didn't see that as being a real opportunity to escape the effect of this bill. Number 350 CHAIRMAN HALFORD said for example, there are three brothers from California who come up here every year and fish Bristol Bay; they are high-line line fishermen who are not popular with the locals and do very well. They work the line as the cost of doing business and the first year they get a violation and brother A has the permit in his name. The second year, they get another violation and are cited (it's on video, so they know they are going to get caught), but it hasn't been to court, yet. So brother A transfers the permit to brother B. The third year, they go out and fish again. Brother A is now a crew member on his own boat with his brother now carrying the permit. The permit isn't suspended because it was transferred before it had 12 points against it. MR. TWOMLEY said he thought this question points out the virtue of this bill and the fact that the demerit points track the individual. If that individual has a case pending against him, those points are going to apply to him if he's convicted. Even during this period, if he's caught in another violation while his brother holds the permit and is cited, those points will be assessed against him and build a record against him which could lead the Commission to suspending his fishing privileges. CHAIRMAN HALFORD said it seems to him that three brothers could keep this thing moving for a long time. He asked, suppose he's a crew member on the boat and his brother's running the boat and they are over the line again, is he going to get a violation as a crew member? Is he going to get cited? He didn't see them citing all the crew members. MR. WRIGHT answered the point is if he transfers the permit to Brother B, he is still the owner of that permit. CHAIRMAN HALFORD said no, as far as the law is concerned, he sold the permit to his brother. So the first two years are covered by the first brother, then the second brother has it on the third year and gets caught and again the fourth year. So he transfers the permit before the second conviction in the fourth year to Brother C. Brother C is in charge for the fifth and sixth years and then they are getting close to where they can go back to Brother A and start all over again. If there are four brothers, he knows they can do it. He noted a letter from CFAB and said maybe one of the benefits the legislature wants out of this is that violations would result in a financial disadvantage to the offending permit holder in the event of a sale of permit during the period in which there are points effectively outstanding by being worth significantly less money. MR. WRIGHT pointed out that there are opportunities for the permit holder to duck this thing, assuming the points track the permit. He can unload the permit when he sees the prices of permits falling and buy one back that is free and clear of any points. CHAIRMAN HALFORD wants to catch them both ways. He said he is very pleased to see this bill because he thought it could do some good in the worst kinds of line fisheries. Number 409 SENATOR SHARP asked if it was possible to make it statutorily binding that if there's a pending violation that may result in suspension, they cannot transfer the permit until the result of the court case. CHAIRMAN HALFORD said he thought that would slow it down, at least. MR. WRIGHT said it would be possible to do that, although the premise of the bill is different than that. The demerit points are not to be assessed until there was due process because you wouldn't know if a conviction would stick or not. The bill operates from the point of conviction rather than citation. They have found that not everything is recorded through the computer system. MR. TWOMLEY said they have learned through work on this bill that there isn't one unified computer system for the courts right now. CHAIRMAN HALFORD asked if the Department could give it to you when they file the charge outside of the court system. MR. TWOMLEY said they could give the citations to him, but a number of those wash out for any number of reasons. CHAIRMAN HALFORD said he wanted to work with CFAB and the sponsors and pass this bill. MR. WRIGHT added that Division of Investments had an interest as well. CHAIRMAN HALFORD asked if they make direct loans. MR. WRIGHT said he understands that they make loans for commercial fishing permits. CHAIRMAN HALFORD asked if they are currently doing that or are they old loans. MR. JERRY MCCUNE, United Fishermen of Alaska, said one of the loan programs is for residents only. CHAIRMAN HALFORD said he didn't think it was a bad idea if a permit with some points on it was worth a little less. This is the kind of thing that the bandits who work the lines the hardest understand. MR. WRIGHT said they had that conversation with Colonel Glass and that's one of the things you try to find your way around. MR. MCCUNE said they wanted to attach the points to permits, but the reason they didn't was because of conversations with Division of Investments and CFAB indicating that people use their permits as collateral for their purchase. CHAIRMAN HALFORD said one of the impacts of CFAB's exposure would be that they would be very careful when they looked at someone's record as to whether they would make them a loan to buy a permit in the first place. MR. MCCUNE said they run afoul of some federal and state lending laws if they try to do something to the permits, like assess them to devalue them. CHAIRMAN HALFORD said they have to be consistent with the State's IRS case which says that permits are really worthless. REPRESENTATIVE IVAN said he would like to help them work through the issues.