Legislature(1997 - 1998)
04/20/1998 03:40 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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 This provision says a permit holder whose privilege has been revoked may not engage in the fishery either as a crew member or renting of the boat to be used in the same fishery from which he/she is suspended.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.