05/16/2003 07:48 AM House FSH
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ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
May 16, 2003
7:48 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Dan Ogg
Representative Ralph Samuels
MEMBERS ABSENT
Representative Cheryll Heinze
Representative Ethan Berkowitz
Representative David Guttenberg
COMMITTEE CALENDAR
HOUSE BILL NO. 22
"An Act relating to commercial fishing permit brokers; and
providing for an effective date."
- MOVED CSHB 22(FSH) OUT OF COMMITTEE
HOUSE BILL NO. 309
"An Act prohibiting the release of nonindigenous predatory fish
into public water."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 25, Supporting Alaska's independent
commercial fishermen and Alaska's fish processing industry and
opposing the establishment of processor quota shares.
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 22
SHORT TITLE:COMMERCIAL FISHING PERMIT BROKERS
SPONSOR(S): REPRESENTATIVE(S)WEYHRAUCH
Jrn-Date Jrn-Page Action
01/21/03 0037 (H) PREFILE RELEASED (1/10/03)
01/21/03 0037 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0037 (H) FSH, RES, FIN
02/21/03 (H) FSH AT 8:30 AM CAPITOL 124
02/21/03 (H) Heard & Held
MINUTE(FSH)
03/07/03 (H) FSH AT 8:30 AM CAPITOL 124
03/07/03 (H) -- Meeting Canceled --
03/10/03 (H) MINUTE(RES)
03/19/03 (H) FSH AT 8:30 AM CAPITOL 124
03/19/03 (H) Heard & Held
03/19/03 (H) MINUTE(FSH)
03/28/03 (H) FSH AT 8:30 AM CAPITOL 124
03/28/03 (H) Scheduled But Not Heard
05/16/03 (H) FSH AT 7:30 AM CAPITOL 124
BILL: HB 309
SHORT TITLE:PROHIBIT RELEASE OF PREDATORY FISH
SPONSOR(S): REPRESENTATIVE(S)WOLF
Jrn-Date Jrn-Page Action
05/08/03 1457 (H) READ THE FIRST TIME -
REFERRALS
05/08/03 1457 (H) FSH, RES
05/08/03 1457 (H) REFERRED TO FISHERIES
05/16/03 (H) FSH AT 7:30 AM CAPITOL 124
BILL: HJR 25
SHORT TITLE:COMMERCIAL FISHING & PROCESSOR SHARES
SPONSOR(S): REPRESENTATIVE(S)SEATON
Jrn-Date Jrn-Page Action
04/16/03 1008 (H) READ THE FIRST TIME -
REFERRALS
04/16/03 1008 (H) FSH, STA, RES
04/16/03 1008 (H) REFERRED TO FISHERIES
04/22/03 1058 (H) COSPONSOR REMOVED: HEINZE
04/23/03 (H) FSH AT 8:30 AM CAPITOL 124
04/23/03 (H) Heard & Held
MINUTE(FSH)
04/25/03 (H) FSH AT 8:30 AM CAPITOL 124
04/25/03 (H) Heard & Held
MINUTE(FSH)
05/16/03 (H) FSH AT 7:30 AM CAPITOL 124
WITNESS REGISTER
LINDA SYLVESTER, Staff
to Representative Bruce Weyhrauch
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of Representative
Weyhrauch, sponsor of HB 22, and addressed proposed changes to
HB 22.
JOHN MITCHELL
Alaska Permits Services
Bellingham, Washington
POSITION STATEMENT: Testified in support of HB 22.
REPRESENTATIVE KELLY WOLF
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as the sponsor of HB 309.
LANCE NELSON, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions pertaining to HB 309.
KELLY HEPLER, Director
Division of Sport Fish
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Offered information pertinent to HB 309.
CHRIS KNIGHT, Staff
to Representative Paul Seaton
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke to the proposed changes to HJR 25.
ACTION NARRATIVE
TAPE 03-29, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 7:48 a.m. Representatives Seaton,
Ogg, and Samuels were present at the call to order.
Representative Wilson arrived as the meeting was in progress.
HB 22-COMMERCIAL FISHING PERMIT BROKERS
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 22, "An Act relating to commercial fishing permit
brokers; and providing for an effective date. [Before the
committee was Version Q, 23-LS0133\Q, Utermohle, 3/18/03. In
the committee packet was a new proposed committee substitute
(CS), Version V.]
CHAIR SEATON noted that while the committee was awaiting a
quorum, discussion of HB 22 would begin.
Number 0086
LINDA SYLVESTER, Staff to Representative Bruce Weyhrauch, Alaska
State Legislature, testified on behalf of Representative
Weyhrauch, sponsor of HB 22, and introduced the proposed changes
to the bill, saying that Version V incorporated a substantive
change found [under Sec. 16.10.570] on page 3, line 23,
paragraph (b). She said that for the protection of consumers,
use of an escrow account was sought for situations in which
funds were being handled by the broker. She noted that previous
testimony had indicated that the cost of the escrow account
would be onerous in some situations, as it would cost between
$85 and $225.
Number 0200
MS. SYLVESTER continued that there had been discussion of
setting a floor or ceiling so that the small transactions would
not be required to use an escrow account but that approach
seemed overly complex in the final analysis. A result of
discussions with several brokers, including John Mitchell and
Stuart Ricky (ph) was that there ought to be a way for people to
not use an escrow account. She said there are situations in
which a cashier's check is being held, the check is in the name
of the seller and the broker holds that check in a file; the
feeling is that this is a secure way of transacting.
Number 0309
MS. SYLVESTER explained the changes incorporated in paragraph
(b), saying that if a broker is going to negotiate the money -
to hold it and put it into a separate account - he/she must use
an escrow account. However, if the broker is only going to hold
a cashier's check, then he/she is allowed to do that, and that
is "thought to be an adequate protection for that". She said
that occupational licensing provides a modest protection. The
fiscal note on occupational licensing was amended by the
director and went from a high to a low number for a biennial
license, with the cost being borne by the brokers themselves.
This would provide some protection for consumers in the state
because brokers would be subject to loosing control. The
sponsor's hope is that the changes could be incorporated before
the end of this session so that next year, HB 22 could be taken
up by the House Resources Standing Committee.
Number 0457
CHAIR SEATON referred to page 3, line 17, and mentioned that
"handle or facilitate" had been changed to "broker", which had
been conceptually defined as being an agent for others in
negotiating contract purchases or sales in return for a fee or
commission, for example. He questioned whether the intention
was to remove the verb "broker".
Number 0565
MS. SYLVESTER said her focus had been on the substantive change
made in paragraph (b) [page 3, line 23], and deferred to the
committee aide and to the materials to which Chair Seaton was
referring.
CHAIR SEATON noted that a motion could be made at the
appropriate time to change "handle or facilitate" to "broker"
throughout the bill.
Number 0635
REPRESENTATIVE OGG reminded the committee that this had
previously been suggested by Representative Berkowitz.
CHAIR SEATON said that when a quorum was present, Version V
needed to be adopted, and after that [Conceptual Amendment 1]
and a definition of broker could be addressed.
Number 0684
JOHN MITCHELL, Alaska Permit Services, Bellingham, Washington,
said he had been in the brokerage business for over 20 years and
was also been a fisherman in Bristol Bay. He provided the
following testimony:
Trust, confidence, a reliance or resting of the mind
on the integrity, justice, or other sound principal of
another person. I believe the public is deserving of
trust. The time has come to provide the public the
assurance of trust when dealing with the brokerage
industry. To ensure that each party will receive what
they bargained for. The issue of trust has once again
become a matter of attention due to the neglect of one
within the brokerage industry that caused the public
harm and broke the law.
It may seem difficult to create a cure-all solution.
However, to take the initiative to create some simple
forms of safeguards surely is warranted today -
occupational licensing for this industry which is
currently un-regulated. Independent escrow account
for the deposit and disbursement of all funds, unless
the parties mutually agree for the substitution of a
cashier's check as the form of payment, made payable
to the seller and to be held and handled by the
broker, under written instructions of the parties: I
strongly endorse these two proposed recommendations
and requirements contained in this bill.
CHAIR SEATON announced that public testimony was closed and
stated that HB 22 would be put aside until a quorum was present.
HB 309-PROHIBIT RELEASE OF PREDATORY FISH
CHAIR SEATON announced that the next order of business would be
HOUSE BILL NO. 309, "An Act prohibiting the release of
nonindigenous predatory fish into public water."
CHAIR SEATON said discussion would be begin on HB 309 until a
quorum was present.
Number 0903
REPRESENTATIVE KELLY WOLF, Alaska State Legislature, sponsor of
HB 309, testified that the bill would make it illegal to
transport predatory game fish and would increase that offense to
a felony. He said that Alaska currently considers this as a
misdemeanor unless a permit is issued by the Alaska Department
of Fish & Game (ADF&G). He told the committee that in
Southcentral Alaska, through the means of "bucket biology," the
transportation of northern pike, a nonindigenous, predatory fish
has been expanding through the fresh water systems. This
expansion jeopardizes different indigenous species of anadromous
fish such as trout, coho salmon, and king salmon. He said that
the only way to eliminate northern pike is to use a chemical
poison, and the poison also kills everything in the water
system. He cited the example of Davis Lake in northern
California, where it cost the state a lot of money to poison the
lake in order to kill off northern pike.
Number 1178
REPRESENTATIVE WOLF continued that some individuals wish to have
this predatory sport fish expand into the Kenai Peninsula and up
into [Matanuska-Susitna] valley. While in some parts of Alaska
the fish is an indigenous species, this isn't the case in the
Kenai Peninsula, considering the watershed and make-up of the
ecosystem. Another issue is that within the last two years,
yellow perch, which he doesn't think are indigenous, were
transported and stocked in a lake by means of bucket biology.
The issue is that individuals should not be changing the state's
ecosystem and endangering the economy or ecology of the region,
he stated.
CHAIR SEATON clarified that the discussion pertained to the
proposed CS [Version I, 23-LS1097\I, Utermohle, 5/9/03].
Number 1379
CHAIR SEATON announced that there was now a quorum present in
committee, and that there was a motion from Representative
Wilson to put the proposed CS for HB 309, Version I, before the
committee. [No objection was stated, and Version I was treated
as adopted.]
CHAIR SEATON asked if the term "game fish" was being used.
REPRESENTATIVE WOLF responded that he did not object to that
usage, noting that the expanded definition would not be
inclusive of tropical fish.
Number 1473
REPRESENTATIVE OGG surmised that on page 1, lines 1, 4, 6, and
7, "game" would be inserted.
CHAIR SEATON acknowledged the foregoing as [Conceptual
Amendment 1]. He asked if there was any objection. There being
no objection, Conceptual Amendment 1 was adopted.
Number 1543
REPRESENTATIVE WOLF acknowledged that from a court of law's
perspective, there was concern regarding the ambiguous aspect of
"nonindigenous." He suggested that perhaps "nonindigenous" be
struck from the title.
Number 1678
LANCE NELSON, Assistant Attorney General, Natural Resources
Section, Civil Division (Anchorage), Department of Law,
testified that an element of the crime is that a person would
have to knowingly release live, nonindigenous, predatory fish
into a body of fresh water. It could be argued by defense
counsel that the state has the burden of proof to show that no
fish of that species has ever been present in that body of
water; he said this might be a difficult task and burden to
overcome.
Number 1775
CHAIR SEATON mentioned that perhaps the House Judiciary Standing
Committee could address a number of these legal issues.
Number 1798
REPRESENTATIVE SAMUELS said, "Generally speaking, if you just
said 'pike' you'd take care of 99 percent of the problem."
Number 1816
KELLY HEPLER, Director, Division of Sport Fish, Alaska
Department of Fish & Game (ADF&G), said that just mentioning
"pike" wouldn't be sufficient because other fish such as yellow
perch have also been introduced; the bill needs to be broad
enough to include other fish as well.
CHAIR SEATON voiced his concern regarding the removal of
"nonindigenous". He pointed out that Representative Wolf was
referring to non-native fish and said, "We're not talking about
salmon eggs that are [moved] from one pond to the next."
REPRESENTATIVE WOLF replied that "nonindigenous" could be
defined within the bill. He said he would like to move the bill
to the House Resources Standing Committee and told the committee
that during the interim he would commit to work with the
Department of Law (DOL) on HB 309.
CHAIR SEATON asked the committee if "amend" should be placed on
the bill [report] as well as the inclusion of a definition of
"nonindigenous".
REPRESENTATIVE OGG questioned making this offense a class C
felony. He gave the example of a fish farm in Washington State
containing Atlantic salmon or other forms of salmon in which
fish leave the pens and swim into Alaskan waters. He said that
it was foreseeable that fish could swim up the streams, and that
under this statute, a state of Washington citizen could be
prosecuted.
CHAIR SEATON clarified that this would need to be a "knowing"
release into a body of fresh public water.
REPRESENTATIVE OGG agreed that a person might know that the fish
would eventually arrive [at that destination].
CHAIR SEATON said that fish traveling through the salt water and
the ocean differed from fish being released knowingly into a
body of fresh water.
Number 2121
REPRESENTATIVE OGG asked, if fish were released into one body of
water with the knowledge that those fish might eventually end up
in another body of water, "What's the difference?"
REPRESENTATIVE WOLF said the bill was written such that a person
may not "knowingly release, or knowingly transport for release",
which is similar to carrying that fish to Alaska and releasing
it into fresh public water. He stated that if fish escape from
a pen, swim through salt water, and eventually spawn in an
Alaskan river, that's different altogether.
REPRESENTATIVE OGG cautioned that there should be not be any
ambiguity, given that a class C felony might be placed on an
individual.
Number 2206
REPRESENTATIVE WOLF said that one reason a class C felony was
chosen was because the poisoning of Davis Lake had cost the
[U.S. Fish & Wildlife Service] and the California Department of
Fish and Game about $1.7 million. He said that because of the
actions of one individual or one small group, the state's
resources could end up being spent.
Number 2263
REPRESENTATIVE WILSON asked what the penalty was for a class C
felony.
REPRESENTATIVE SAMUELS responded that the penalty involved 364
days for a misdemeanor and 365 days for a felony.
REPRESENTATIVE OGG commented that he wasn't necessarily
suggesting that the felony be lowered to a misdemeanor but
rather, if this was going to be a class C felony crime, then the
language needed to be very tight.
CHAIR SEATON asked if using the language "directly into a body
of fresh water" would satisfy Representative Ogg's concern
regarding ocean migration.
REPRESENTATIVE OGG replied that he would prefer that the
language be reviewed by the attorney general's office and the
ADF&G to make sure that it's tight.
REPRESENTATIVE WOLF said that he had already made the commitment
to work with the ADF&G and DOL during the interim.
Number 2366
REPRESENTATIVE WILSON told the committee that since the bill
isn't currently going anywhere, she would prefer that HB 309 be
heard by the House Special Committee on Fisheries this January
[2004].
REPRESENTATIVE WOLF said he would like to see the bill move to
the House Resources Standing Committee.
REPRESENTATIVE WILSON repeated her suggestion that the House
Special Committee on Fisheries review the bill at the beginning
of next session.
REPRESENTATIVE OGG said he agreed with Representative Wilson.
He stated that this was clearly a fisheries issue and that he
would prefer sending on a bill that had been worked through.
REPRESENTATIVE SAMUELS stated that he agreed with Representative
Ogg.
The committee took an at-ease from 8:25 to 8:28 a.m.
Number 2460
CHAIR SEATON said that CSHB 309 would be held over and that
during the interim the [departments] and the sponsor would
continue to work on the bill. A definition of nonindigenous was
needed and a tightening of the language in order to avoid
unintended consequences. He said that HB 309 would be one of
the first orders of business next year. [HB 309 was held over.]
HB 22-COMMERCIAL FISHING PERMIT BROKERS
Number 2499
CHAIR SEATON returned attention to HOUSE BILL NO. 22, "An Act
relating to commercial fishing permit brokers; and providing for
an effective date." [A quorum was now present.]
Number 2522
REPRESENTATIVE OGG moved to adopt Version V [23-LS0133\V,
Utermohle, 5/15/03] as a work draft. There being no objection,
Version V was before the committee.
CHAIR SEATON said [Conceptual Amendment 1, discussed earlier in
the meeting] would change "handle or facilitate" to "broker"
throughout the bill.
REPRESENTATIVE OGG said, "Yes, the verb, broker."
CHAIR SEATON said, "Thank you, and then of course a definition
of broker will also be added and clarified."
REPRESENTATIVE OGG asked if this would be a definition of the
verb, "to broker."
CHAIR SEATON confirmed this to be so. [No formal motion was
made, but Conceptual Amendment 1 was treated as adopted.]
MS. SYLVESTER explained the changes [previously discussed in
committee, addressing the changes being made from Version Q to
Version V] to Representative Wilson. She said the substantive
change was addressed in paragraph (b) on page 3, beginning on
line 23. She said that at the last hearing there was concern
that requiring an escrow account for each and every situation
might be onerous and not appropriate. She said if the broker is
going to hold and negotiate the money, it must be put into an
escrow account where it will be safe. However, if the purchaser
provides the broker with a cashier's check in the name of the
seller, he/she may hold that in a file, for example, and that
would be considered to be safe and secure. Ms. Sylvester stated
that there are two options and that a floor/ceiling was not
being contemplated.
CHAIR SEATON added that occupational licensing is involved at
the lowest level so the fiscal note is only $3,000.
MS. SYLVESTER added that the amount would be $240 for a two-year
license.
Number 2615
REPRESENTATIVE OGG moved to report CSHB 22, Version 23-LS0133\V,
Utermohle, 5/15/03, as amended, out of committee with individual
recommendations and the accompanying fiscal note. There being
no objection, CSHB 22(FSH) was reported from the House Special
Committee on Fisheries.
HJR 25-COMMERCIAL FISHING & PROCESSOR SHARES
Number 2644
CHAIR SEATON announced that the final order of business would be
HOUSE JOINT RESOLUTION NO. 25, Supporting Alaska's independent
commercial fishermen and Alaska's fish processing industry and
opposing the establishment of processor quota shares.
Number 2672
REPRESENTATIVE OGG moved to adopt the proposed committee
substitute (CS), Version 23-LS0996\H, Utermohle, 5/15/03, for
discussion purposes. [No objection was stated, and Version H
was treated as adopted.]
REPRESENTATIVE OGG offered [Conceptual Amendment 1] on page 2,
line 8, after the word "shares" to add in the language, "for the
Bering Sea and Aleutian Islands crab fishery". There being no
objection, it was so ordered.
CHAIR SEATON noted that the changes made to HJR 25 recognize the
decisions and work of the [North Pacific Fishery Management
Council (NPFMC)] to rationalize the crab fishery in the Bering
Sea. He noted that the change in the title occurs throughout
the resolution.
Number 2791
CHRIS KNIGHT, Staff to Representative Paul Seaton, said that
most of the first page, other than the title was the same. He
continued that on page 2, line 7, "unfathomable" was included.
He said that any "opposition or opposing" language had been
removed and that the committee's support of the [NPFMC's]
interest in rationalizing the fishery had also been included.
CHAIR SEATON said that the rationalization of the fishery wasn't
the problem; it's the inclusion of this section of "processor-
quota shares", which would distort the balance between
commercial fishermen and processors and introduce a new element
that would be non-competitive in the future. This would prevent
any future processors from becoming involved. The resolution
addresses that element of the plan - that the processor-quota
share fixes things so that only certain processors can forever
buy crab and that the fishermen would have to deliver to certain
people - that would have ramifications throughout the industry
and could have tremendous ramifications for coastal Alaskan
communities.
MR. KNIGHT added that the attempt was to tone down the
oppositional language to say, "We support what you're doing, but
consider this one aspect."
REPRESENTATIVE WILSON said, "Because there is controversy and
because we are saying that the whole state feels this way and it
is wrong, I have a problem [with it]." [Tape ends.]
TAPE 03-29, SIDE B
MR. KNIGHT said the language, which was fairly general, was
inclusive of both groups, and didn't indicate that one group was
better than another.
Number 2928
REPRESENTATIVE SAMUELS said that although he appreciates the
change in tone and the work that has gone into HJR 25, he has
the same concerns as Representative Wilson's. He said if the
[federal government] is being asked to look at processor quota
shares, the request should be to look at the whole IFQ
[individual fishery quota] system. He said that a public
resource has been walled-up so it's difficult to get into the
fishery to begin with. He mentioned that fishermen have the
difficulty of being stuck selling to the one area and that the
argument for fishermen "still cuts both ways." He said, "The
fishermen don't want to be locked in, but [they] have locked us
out. It's a philosophical argument." Representative Samuels
said he didn't have an ax to grind one way or another and
wouldn't object to [the resolution] going out of committee.
Number 2845
REPRESENTATIVE OGG said that HJR 25 was now more effective due
to the focus being on the particular instead of the global, the
positive aspect of the new language, and the emphasis on
reconsideration.
Number 2808
REPRESENTATIVE OGG moved to report CSHJR 25, Version 23-
LS0996\H, Utermohle, 5/15/03, as amended, out of committee with
individual recommendations and the [accompanying zero fiscal
note].
Number 2780
REPRESENTATIVE WILSON objected. She said although the tone was
better, she thought it would be better to wait until next year.
The committee took an at-ease from 8:45 a.m. to 8:46 a.m.
REPRESENTATIVE OGG withdrew his motion.
CHAIR SEATON announced that HJR 25 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
8:47 a.m.
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