Legislature(1997 - 1998)

04/20/1998 03:40 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
      CSHB 285(RES) am - COMM. FISH PERMIT/LIC. REVOCATION                     
                                                                               
SENATOR GREEN moved to adopt SCS CSHB 285(RES), version Q, as the              
working document of the committee.  There being no objection, the              
motion carried.                                                                
                                                                               
BRETT HUBER, Senate Resources Committee Aide, discussed the changes            
made in the committee substitute as follows.  First, he noted on               
page 2, line 9 of the committee substitute, the number 4 was                   
handwritten in.                                                                
                                                                               
The first change in the committee substitute is on page 2 in the               
listing of violations and points.  Several two point violations                
appeared in the original version of the bill.  The committee                   
expressed concern that those violations could occur erroneously,               
therefore those two point violations were removed from the                     
committee substitute.                                                          
                                                                               
The second change is also on page 2.  The original bill provided               
that an offender who admitted to an offense and paid the fine,                 
would be charged with a violation rather than a misdemeanor, and               
would get half the amount of points.  That provision was removed               
because it provided an incentive to purposely violate since it                 
could make economic sense in.  By merely paying the violation, one             
could reduce his/her points by half, which only made the cost of               
doing business a little higher.                                                
                                                                               
The next change on page 3 removed a provision that allowed a two-              
point reduction in the total cumulative points for every 12-month              
period that a permit holder went without another violation.                    
                                                                               
The fourth change is on line 25, and adds subsection (b).  This                
provision says a permit holder whose privilege has been revoked may            
not engage in the fishery either as a crew member or renting of the            
boat to be used in the same fishery from which he/she is suspended.            
The concern with that provision was the scenario in which several              
family members work one permit, through transfers, so that                     
provision would limit the economic association with the fishery if             
the person's permit was suspended.                                             
                                                                               
The final change is on page 4, line 12.  Basically, the bill                   
disallows emergency transfer of a permit if a person's privileges              
were suspended, but there is a loophole in that if someone had 10              
points and was charged with another six point violation, a person              
could do an emergency transfer of the permit before the six point              
violation was adjudicated.  This provision disallows emergency                 
transfers if one has pending violations that would total more than             
the allowable points.                                                          
                                                                               
CHAIRMAN HALFORD summarized the two basic areas of change as: the              
way to stop the family members with the economic association crew              
member license and the emergency transfer provision; and how the               
points are counted.  The minor violations that have no economic                
impact on the fisherman were removed.  The permit holder not                   
present violation was dropped from six points to four points                   
because that is a nebulous area.  And, the provision that removes              
two points for being good was deleted.  He commented he was                    
originally interested in tying the bill back to the permit.  He met            
with the Division of Investments' and CFAB staff and they pointed              
out many problems associated with that approach.  If this bill does            
not work after a few years, he would like to readdress that                    
approach.  He noted that using a market approach by devaluing                  
permits with points against it would provide a strong disincentive.            
                                                                               
MR. HUBER stated one open question remains, that being who is                  
charged if a permit holder is on board asleep and another crew                 
member commits a violation.  He noted that Mr. Hard from the                   
Department of Public Safety (DPS)was on teleconference and would               
respond to questions.                                                          
                                                                               
CHAIRMAN HALFORD said that kind of situation happens when a permit             
holder is hired by a boat owner.  If the only person who gets                  
charged is the permit holder, even though the boat owner committed             
the violation, the boat owner can just hire a different permit                 
holder the next season.  He asked Mr. Hard whether DPS only cites              
the permit holder or does DPS cite the operator if the operator and            
permit holder are in a partnership and the operator makes the                  
decisions.                                                                     
                                                                               
MR. JOEL HARD, Division of Fish and Wildlife Protection, replied               
DPS cites both when it can clearly tie the two.                                
                                                                               
CHAIRMAN HALFORD asked if this bill can then apply to a person who             
does not hold a permit.                                                        
                                                                               
MR. HARD said that is correct.                                                 
                                                                               
CHAIRMAN HALFORD asked the sponsor's staff to comment on the Senate            
Resources SCS.                                                                 
                                                                               
TOM WRIGHT, staff to Representative Ivan, stated Representative                
Ivan is concerned about eliminating half-points for violations.                
The main concern is that two types of violations exist: a                      
misdemeanor is committed if there is intent to commit an offense as            
opposed to a violation in which a permit holder might drift into               
closed waters while asleep at the wheel.  The sponsor believes the             
half-points for violations should remain in effect.  Representative            
Ivan's second concern is the elimination of the two point reduction            
for no violations within a one year period after a conviction                  
because it provides incentive to keep one's record clean.                      
                                                                               
CHAIRMAN HALFORD asked what the ratio of violations versus                     
misdemeanors is.  He noted he understood that in all but the most              
obvious cases, offenses are charged as violations because intent               
must be proved, which is difficult to do.                                      
                                                                               
MR. HARD replied in most cases, the criminal act is charged as a               
misdemeanor initially, and for reasons of convenience at the                   
prosecutorial stage, many are reduced to violations where the                  
burden of proof is reduced.  There is an incentive for defendants              
to quickly adjudicate the matter through the lower penalties.                  
DPS's position is that by getting too tough, it threatens its                  
ability to enforce the regulations.  When costs become so great or             
threatening to fishermen, more intense and regular defenses will               
result, and they will undoubtedly take DPS officials out of the                
field to answer those defenses.  DPS does not want to encourage                
that and would like to see the violation point schedule retained.              
                                                                               
CHAIRMAN HALFORD asked if Representative Ivan would like to see the            
point schedule be doubled for violations versus misdemeanors.                  
                                                                               
MR. HARD asked for further clarification.                                      
                                                                               
CHAIRMAN HALFORD explained the bill cut the point schedule in half.            
All of the points would have to be doubled to have any effect on               
violations.                                                                    
                                                                               
TAPE 98-32, SIDE A                                                             
                                                                               
MR. HARD said under the current draft, the points are aimed against            
the misdemeanant.                                                              
                                                                               
CHAIRMAN HALFORD explained that is correct because otherwise, it               
takes four of the worst violations at six points within a three                
year period to have any impact at all.  Former Deputy Commissioner             
Swackhammer made a major push to catch violators.  Some people had             
three or four violations within one fishing season but the fines               
the violators paid were written off as a cost of doing business.               
Chairman Halford said he is concerned that if we go all of the way             
back to half the points, the schedule will never apply to anyone.              
                                                                               
MR. HARD stated DPS is in its second fishing season of having a                
district attorney who clearly oversees all of its commercial                   
fishing cases, primarily in the Bristol Bay area.  DPS believes it             
will not see those sorts of reductions that it has seen in past                
cases, or at least there will be more argument against the                     
reductions in court.                                                           
                                                                               
CHAIRMAN HALFORD said he can understand the incentive to encourage             
people to go down the scale, but he hates to give them half of the             
points.  He questioned whether there is anything in between that               
still provides incentive to not contest, without making the                    
schedule out of reach.                                                         
                                                                               
SENATOR TAYLOR stated he has been frustrated by the gross numbers              
of violations in the Bristol Bay fishery.  He noted ADF&G has had              
the ability to enforce those lines and do it in such a way that it             
would have significant impact upon violators since day one.  ADF&G             
has always had the right to forfeit a vessel.  Instead, it does not            
opt to do that although it forfeits airplanes on guides frequently.            
He stated the Legislature passed legislation that created the                  
violation approach which brings DPS a lot more revenue off of a                
whole bunch of cases it did not want to have to try.  They write               
the cases up as misdemeanants assuming 90 percent will plead out               
and not go to trial. Senator Taylor stated the Legislature needs to            
make a philosophical decision about whether the state is going to              
get serious about patrolling for violators in that area.  He said              
there should be some notification requirement for fishermen who are            
in the process of crossing into a closed fishing area because of               
engine failure or other uncontrollable situations so that those                
fishermen do not get cited for violations when circumstances were              
beyond their control.                                                          
                                                                               
CHAIRMAN HALFORD questioned whether cutting the points in half for             
a first violation, but not for the second one within a 36 month                
period, no matter whether it is a misdemeanor or a violation.  He              
stated he wants to give DPS and the prosecution the incentive to               
plead out because it is a practical application that has a                     
deterring effect.                                                              
                                                                               
Number 143                                                                     
                                                                               
SENATOR LINCOLN commented this bill will apply to all of Alaska,               
not only Bristol Bay, and she is concerned that a person could                 
easily get 12 points in one season for doing something erroneously,            
which is not the intent of the bill.  She discussed a situation her            
cousin found herself in when someone used her set net without her              
knowledge.  She was then forced to go and pick the net up which was            
in closed waters.  Her second concern is if this bill is enacted,              
more violators will challenge their citations and  the fiscal note             
should not be zero.                                                            
                                                                               
CHAIRMAN HALFORD said, as Senator Taylor pointed out, this bill                
will create another tool and DPS does not even use all of the tools            
it has.   He thought providing the flexibility to be lenient on the            
first violation would work.  He asked Mr. Hard if a fishermen had              
a net in the water in a closed area, whether that fishermen would              
be charged with fishing in closed waters or fishing out of season.             
                                                                               
MR. HARD said it would be a closed waters citation and would not be            
both.                                                                          
                                                                               
CHAIRMAN HALFORD said that is why the two point violations were                
removed because those types of violations do not make fishermen                
money, they were usually mistakes.                                             
                                                                               
SENATOR LINCOLN asked if DPS would cite a violator for both fishing            
with gear not allowed in the fisheries and for possessing                      
prohibited size fish, which would add up to 12 points.                         
                                                                               
CHAIRMAN HALFORD said he was sure there were some combinations.                
                                                                               
SENATOR LINCOLN questioned whether the maximum could be six points             
for one incident.                                                              
                                                                               
CHAIRMAN HALFORD asked Mr. Hard to address that question.                      
                                                                               
MR. HARD replied each case is evaluated on its individuality by the            
trooper's assessment.  In cases where someone has committed an                 
egregious violation and multiple violations, multiple citations                
could be issued and boats could be seized as well.  Regarding the              
scenario described by Senator Lincoln, he did not believe multiple             
citations would be issued.                                                     
                                                                               
CHAIRMAN HALFORD asked Senator Lincoln what happened in her                    
cousin's situation.                                                            
                                                                               
SENATOR LINCOLN said she did not know what happened, she assumes               
her cousin paid the fine.                                                      
                                                                               
SENATOR LEMAN remarked the gear was stolen.                                    
                                                                               
SENATOR LINCOLN stated the state troopers do no know that.  Her                
cousin was cited for fishing in closed waters.                                 
                                                                               
CHAIRMAN HALFORD suggested including a provision that decreases the            
number of points by half for the first violation.  That would                  
provide an incentive to plead out and take some of the load off of             
the criminal justice system, but it still strengthens the schedule             
against major violators.                                                       
                                                                               
Number 245                                                                     
                                                                               
MR. WRIGHT stated he would have to speak to the sponsor, but did               
not see anything wrong with that approach at first blush.  He asked            
whether that would apply to a second violation for the same                    
violation or for any violation.                                                
                                                                               
CHAIRMAN HALFORD clarified the first time, no matter what the                  
violation is, the offender gets half the amount of points.  The                
second time the offender gets any violation, the full number of                
points would be assessed.                                                      
                                                                               
CHAIRMAN HALFORD said the other question that remains is in regard             
to the provision that gives two points back for each year a                    
violator gets no citations.                                                    
                                                                               
SENATOR TAYLOR stated some years ago he and Judges Hornaday and                
Keane traveled all over the state and held hearings about the topic            
of fish and game violations and disparate sentences, meaning                   
sentences that were dramatically different for the same offense.               
The three judges recommended to the Supreme Court that a few more              
people needed to be involved in the sentencing process at the                  
district court level, and that the judiciary needed to be better               
educated about what was a meaningful violation.  The Judiciary                 
disregarded the recommendations.  Senator Taylor stated ADF&G                  
commits just as many errors as does the other side.                            
                                                                               
SENATOR GREEN moved to adopt a conceptual amendment dealing with               
first violations at half points.                                               
                                                                               
SENATOR TAYLOR clarified the amendment should specify within a 36              
month period.  He asked if the points are reinstated if a second               
violation occurs.                                                              
                                                                               
CHAIRMAN HALFORD explained if a person commits a first violation,              
not a misdemeanor, he/she will receive half of the points.                     
                                                                               
CHAIRMAN HALFORD stated there being no objection to the adoption of            
the conceptual amendment, the motion carried.                                  
                                                                               
Number 338                                                                     
                                                                               
CHAIRMAN HALFORD stated there was a question on the two points per             
year of no violations.  The sponsor was concerned about that                   
provision.  Chairman Halford said he would like to make the bill as            
strong as possible but does not want to make it unworkable.  He                
clarified the bill allowed two points every year.                              
                                                                               
MR. HUBER said that was correct, two points every year from the                
date of the last conviction.  It was modeled after provisions in               
the drivers' license program.                                                  
                                                                               
SENATOR LEMAN remarked according to the fiscal note there are 600              
to 800 convictions per year.  He asked the number of permit                    
holders.                                                                       
                                                                               
MR. WRIGHT replied 12,000.                                                     
                                                                               
SENATOR LEMAN noted five per cent of permit holders are violators.             
He noted he has been fishing for 40 years and has no accumulated               
points.  He emphasized a person has to be a nasty violator to                  
accumulate points.                                                             
                                                                               
CHAIRMAN HALFORD stated there did not appear to be committee                   
support to put back in the two points.                                         
                                                                               
SENATOR LEMAN thought it was unnecessary.                                      
                                                                               
MR. WRIGHT said once a violator gets 12 points, he/she is stuck                
with the 12 points forever.                                                    
                                                                               
CHAIRMAN HALFORD clarified it is for three years.                              
                                                                               
Number 374                                                                     
                                                                               
BRUCE TWOMLEY, Chairman of the Commercial Fisheries Entry                      
Commission, brought the committee's attention to page 4, lines 12-             
16.  The first part of Section D relates to not doing emergency                
transfers when a permit is suspended or when enough points have                
been accumulated.  The last part relates to denying emergency                  
transfers when charges are pending  charges, that might lead to a              
suspension, would have the effect of prohibiting the transfer,                 
although he/she might chose to defend himself and became disabled              
while fishing.                                                                 
                                                                               
CHAIRMAN HALFORD said that interpretation is rare but possible.                
                                                                               
SENATOR LEMAN suggested making an exclusion for medical transfers.             
                                                                               
CHAIRMAN HALFORD noted that is what emergency transfers are usually            
for.  He stated that would take three violations.  With the                    
amendment just adopted, no first violation will carry more than                
three points, therefore it will take a third violation to                      
accumulate 12 points.                                                          
                                                                               
SENATOR TAYLOR said it depends on whether the charge is a violation            
or a misdemeanor.                                                              
                                                                               
CHAIRMAN HALFORD remarked misdemeanor convictions require proof of             
intent.                                                                        
                                                                               
COMMISSIONER TWOMLEY suggested including an exception for a bona               
fide medical emergency.                                                        
                                                                               
CHAIRMAN HALFORD asked what the other reasons are for an emergency             
transfer.                                                                      
                                                                               
COMMISSIONER TWOMLEY replied special sessions for legislators, but             
the biggest category is medical.                                               
                                                                               
SENATOR LEMAN suggested making an exception for life threatening               
circumstances.                                                                 
                                                                               
CHAIRMAN HALFORD suggested including a time limit.                             
                                                                               
COMMISSIONER TWOMLEY suggested including a physically disabling                
medical emergency exception.                                                   
                                                                               
CHAIRMAN HALFORD questioned the result of allowing an emergency                
transfer for a 30-day period only, which could be the entire                   
Bristol Bay season.                                                            
                                                                               
SENATOR TAYLOR did not think that would work well in Southeast                 
because the seining season lasts for 90 days.  He stated in the                
three brothers situation, the license would have to be sold.                   
                                                                               
SENATOR LEMAN thought it is quite unlikely that this circumstance              
is going to happen.                                                            
                                                                               
                                                                               
The committee took a brief at-ease.                                            
                                                                               
CHAIRMAN HALFORD suggested deleting lines 12-16 on page 4.                     
                                                                               
SENATOR TAYLOR so moved.  There being no objection, the motion                 
carried.                                                                       
                                                                               
MR. WRIGHT asked, on the point system where a permit holder                    
accumulates 12 or more points during a 36-month period, his/her                
license is suspended for one year.  If a permit holder gets 16 or              
more points during a 48-month period, the suspension is for two                
years, and if 18 or more points during a 60-month period, the                  
suspension is for three years, how that will work if the points are            
dropped after 36 months.                                                       
                                                                               
CHAIRMAN HALFORD explained the points do drop off but not until the            
end of the 60 month period.                                                    
                                                                               
SENATOR GREEN clarified three years are rolling.                               
                                                                               
Number 490                                                                     
                                                                               
MR. HARD said, "If they don't just go away, what happens is from               
the time a person is cited, you go back 12 months, 36 months, or 48            
months, and if there are no other violations within that period,               
that's how it's factored.  Actually when I looked at it that way I             
thought that dropping the points was probably redundant to this                
system anyway."                                                                
                                                                               
MR. WRIGHT thanked Mr. Hard, and noted if a person is clean for                
five years, they are starting over again.                                      
                                                                               
Number 526                                                                     
                                                                               
JERRY MCCUNE stated if people live way out in a village and have no            
other way to make a living, they would put themselves out of                   
business by doing away with their permit, but the bill should not              
prevent them from crewing for the season.                                      
                                                                               
CHAIRMAN HALFORD remarked that person got him/herself into that                
position by a serious string of violations.                                    
                                                                               
SENATOR TAYLOR asked if the crew members get cited along with the              
captain.                                                                       
                                                                               
CHAIRMAN HALFORD said not necessarily.  He asked Mr. Hard if crew              
members who are not making the operational decisions are generally             
cited.                                                                         
                                                                               
MR. HARD said not generally.                                                   
                                                                               
CHAIRMAN HALFORD asked if crew members are cited if it looks like              
they are running the operation.                                                
                                                                               
MR. HARD said that is correct.                                                 
                                                                               
SENATOR TAYLOR noted everyone on a boat in Southeast Alaska is                 
charged with the same offense.                                                 
                                                                               
Number 526                                                                     
                                                                               
MR. MCCUNE suggested prohibiting the permit holder from crewing on             
his or her own boat.  He stated his intent is not to defend repeat             
violators, but to recognize the fact that in some villages there is            
no other kind of work.                                                         
                                                                               
CHAIRMAN HALFORD suggested having the bill pertain to a permit                 
holder or person in charge of the boat.                                        
                                                                               
MR. HARD said he thought Mr. McCune was trying to get at the                   
individual permit holder out in Western Alaska, who by virtue of               
poor fishing, loses his permit.  Then, his only course of income is            
to become a crew member on another person's boat.  He thought the              
bill might be too harsh in that circumstance, but not in the                   
circumstance referred to by Chairman Halford.                                  
                                                                               
CHAIRMAN HALFORD stated they pose two different questions, and the             
committee might be trying to go beyond where it can reach.                     
                                                                               
MR. WRIGHT noted there might be circumstances where the skipper is             
operating the boat but it does not appear that way, which could                
cause a lot of confusion in the courts.                                        
                                                                               
MR. TWOMLEY indicated the state has very tight records regarding               
who is a permit holder.  Crew members hold licenses, but there is              
no way of knowing what boat they were on and following their                   
progress through a fishery.                                                    
                                                                               
CHAIRMAN HALFORD commented that he thought the way it is drafted               
works because also the person you are worried about as a crew                  
member doesn't have a permit anyway.                                           
                                                                               
Number 568                                                                     
                                                                               
There being no further testimony on HB 285, CHAIRMAN HALFORD                   
requested a motion on the legislation.                                         
                                                                               
SENATOR TAYLOR moved SCS CSHB 285(RES) and the accompanying fiscal             
note  be passed out of committee with individual recommendations.              
Hearing no objection, it was so ordered.                                       

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