Legislature(2003 - 2004)
03/10/2003 01:05 PM House RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 10, 2003
1:05 p.m.
MEMBERS PRESENT
Representative Hugh Fate, Co-Chair
Representative Beverly Masek, Vice Chair
Representative Carl Gatto
Representative Cheryll Heinze
Representative Bob Lynn
Representative Kelly Wolf
Representative David Guttenberg
Representative Beth Kerttula
MEMBERS ABSENT
Representative Mike Chenault, Co-Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 118
"An Act relating to the transportation and sale of certain
commercially caught fish by an agent of a commercial fishing
permit holder and to the sale of fish; and providing for an
effective date."
- MOVED CSHB 118(RES) OUT OF COMMITTEE
HOUSE BILL NO. 113
"An Act extending the renewal period for oil discharge
prevention and contingency plans; and providing for an effective
date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 118
SHORT TITLE:TRANSPORTATION OF COMMERCIAL FISH
SPONSOR(S): REPRESENTATIVE(S)SEATON BY REQUEST SALMON INDUSTRY
TASK FORCE
Jrn-Date Jrn-Page Action
02/21/03 0271 (H) READ THE FIRST TIME -
REFERRALS
02/21/03 0271 (H) FSH, RES
02/28/03 (H) FSH AT 8:30 AM CAPITOL 124
02/28/03 (H) Moved CSHB 118(FSH) Out of
Committee
02/28/03 (H) MINUTE(FSH)
03/03/03 0357 (H) FSH RPT CS(FSH) 4DP 2NR
03/03/03 0357 (H) DP: HEINZE, WILSON,
GUTTENBERG, SEATON;
03/03/03 0357 (H) NR: BERKOWITZ, SAMUELS
03/03/03 0358 (H) FN1: ZERO(DFG)
03/03/03 0358 (H) FN2: INDETERMINATE(LAW)
03/03/03 0367 (H) FIN REFERRAL ADDED
03/10/03 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 113
SHORT TITLE:DISCHARGE PREVENTION & CONTINGENCY PLANS
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/19/03 0252 (H) READ THE FIRST TIME -
REFERRALS
02/19/03 0252 (H) O&G, RES, FIN
02/19/03 0252 (H) FN1: ZERO(DEC)
02/19/03 0252 (H) GOVERNOR'S TRANSMITTAL LETTER
02/27/03 (H) O&G AT 3:15 PM CAPITOL 124
02/27/03 (H) Moved CSHB 113(O&G) Out of
Committee
02/27/03 (H) MINUTE(O&G)
03/03/03 0356 (H) O&G RPT CS(O&G) NT 5DP
03/03/03 0356 (H) DP: MCGUIRE, ROKEBERG, FATE,
CRAWFORD,
03/03/03 0356 (H) KOHRING
03/03/03 0357 (H) FN1: ZERO(DEC)
03/03/03 0357 (H) FN2: ZERO(LAW)
03/10/03 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as sponsor of HB 118 by request of
the Joint Legislative Salmon Industry Task Force.
GERALD McCUNE, Lobbyist
for United Fishermen of Alaska (UFA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 118.
DOUG MECUM, Director
Division of Commercial Fisheries
Alaska Department of Fish and Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 118 and answered questions;
suggested that as long as the provisions in [CSHB 118(FSH)]
remain, ADF&G doesn't foresee problems that can't be addressed
through regulations; also explained concerns about adding the
shrimp and Dungeness crab fisheries to the bill.
GORDY WILLIAMS, Legislative Liaison
Office of the Commissioner
Alaska Department of Fish and Game
Juneau, Alaska
POSITION STATEMENT: Testified on HB 118; emphasized the
importance that fish tickets be written at the transporter level
and then taken to the point of sale, which wasn't included in
the original version of the bill.
JAMES COCKRELL, Major, Deputy Director
Division of Fish & Wildlife Protection
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During hearing on HB 118, testified that
the current version appears enforceable, but expressed concern
about expanding the bill to include the Dungeness crab and
shrimp fisheries.
CHRIS GARCIA
Cook Inlet Fishermen's Fund
Kenai, Alaska
POSITION STATEMENT: Testified in support of HB 118.
SUSAN SULLIVAN, Program Coordinator
Child Support Enforcement Division (CSED)
Department of Revenue
Anchorage, Alaska
POSITION STATEMENT: Explained CSED's suggested Amendment 1 to
CSHB 118(FSH).
MARY McDOWELL, Commissioner
Commercial Fisheries Entry Commission (CFEC)
Alaska Department of Fish and Game
Juneau, Alaska
POSITION STATEMENT: Testified on HB 118; answered questions
relating to CSED's suggested Amendment 1.
BRUCE SCHACTLER, Board Member
United Fishermen of Alaska (UFA);
President, United Salmon Association
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HB 118.
CHRIS BERNS
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HB 118; he noted a
"gray area" with respect to hauling fish, and his perception
that the bill is a housekeeping measure.
RICK ELLINGSON
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HB 118; urged
members to include the Dungeness crab fishery in the bill.
GEORGE UTERMOHLE, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Provided information and answered legal
questions relating to HB 118.
CHERYL FULTZ, Planning Manager
Southeast Alaska Petroleum Resource Organization (SEAPRO)
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 113.
LARRY DIETRICK, Director
Division of Spill Prevention and Response
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 113; suggested a
five-year renewal period will streamline the review process for
the industry while maintaining Alaska's strong spill prevention
and response standards.
ACTION NARRATIVE
TAPE 03-12, SIDE A
Number 0001
CO-CHAIR HUGH FATE called the House Resources Standing Committee
meeting to order at 1:05 p.m. Representatives Fate, Masek,
Gatto, Heinze, Lynn, and Wolf were present at the call to order;
Representative Kerttula arrived shortly thereafter.
Representative Guttenberg arrived as the meeting was in
progress. Representative Chenault was excused.
HB 118-TRANSPORTATION OF COMMERCIAL FISH
[Contains brief discussion of HB 22]
Number 0101
CO-CHAIR FATE announced that the first order of business would
be HOUSE BILL NO. 118, "An Act relating to the transportation
and sale of certain commercially caught fish by an agent of a
commercial fishing permit holder and to the sale of fish; and
providing for an effective date." [Before the committee was
CSHB 118(FSH).]
Number 0170
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, sponsor of
HB 118 by request of the Joint Legislative Salmon Industry Task
Force, described the legislation as "a transporter bill" that
allows fishermen to contract with a tender or another vessel to
transport their fish back to town. He indicated that the
[transporter vessel] can be another fisherman or an independent
vessel. That vessel would have to get a transporter permit,
which would be issued by the Alaska Department of Fish and Game
(ADF&G). He said the presumption is that the regulations will
lay out the terms of the transporter permit, and it would be
understood that the fisherman [contracting with the transporter]
retains ownership of the fish; the transporter is hired and acts
as an agent to sell that person's fish to whoever is designated
at a port. He explained that processors, which have
traditionally supplied tenders to all the fishing grounds, have
cut back on their operations and financial commitments. He said
one of the ways they've done that is by not supplying tenders,
which means that the fishermen have to run their fish back to
the processing plant.
REPRESENTATIVE SEATON explained that the reason for this is that
there is a state law in place which specifies that it is illegal
for a person to have a fish ticket signed by the fisherman,
unless the person is the buyer, and the fisherman has to be
present at the point of sale. He said this law creates a very
big problem in the state's current structure. He said a tender
is under a contract with a processor and is an agent, so when a
fisherman puts his/her fish on a tender, it's the point of sale.
If there is not an tender available, then the point of sale is
the dock where those fish arrive, which means the fisherman has
to leave the grounds. He explained that this increases expenses
and removes fishermen from the grounds, and it also doesn't
allow them to work in a cooperative way, in some of the state's
smaller fisheries, especially.
Number 0405
REPRESENTATIVE SEATON noted that the bill is limited to salmon,
herring, and Pacific cod, and he suggested getting [the bill]
into place quickly for the purpose of allowing salmon fishermen
to lower their costs. Representative Seaton cited testimony
given in the House Special Committee on Fisheries by people on
the Aleutian Chain who said they have to quit [fishing] in the
fall when the processors stop sending tenders there. He
mentioned that this bill would provide the opportunity for
fishermen to aggregate their catch on one of the other fishing
boats and do all the paperwork including the fish tickets. He
said the person would have to be there with his or her card,
which would be imprinted; everything would be done, except the
processor's code wouldn't go on it, and would be added when the
fish were delivered back to the dock. He concluded by saying
the intent of the bill is to allow fishermen flexibility and the
ability to economize on getting fish off the fishing grounds and
back to the processor.
Number 0530
REPRESENTATIVE MASEK moved to adopt CSHB 118(FSH) for purposes
of discussion. There being no objection, it was so ordered.
Number 0671
REPRESENTATIVE SEATON indicated the Board of Fisheries, ADF&G,
UFA [United Fishermen of Alaska], the industry, and others had
worked the concept of this bill through several revisions, and
that the bill has general support.
Number 0737
CO-CHAIR FATE called on Jerry McCune to testify. First,
however, he informed members that there had been notification
shortly before the meeting that perhaps some clarification of
[the statutes pertaining to] the Child Support Enforcement
Division (CSED) was needed. He mentioned existing law under
AS 25.27.244, the "child support licensing statute." He
indicated there would be an amendment offered later, although he
acknowledged that the sponsor might not have been aware of it.
Number 0792
GERALD McCUNE, Lobbyist for United Fishermen of Alaska (UFA),
spoke in support of the bill, noting that it gives flexibility
to fishermen to transport or "co-op" fish, especially in a lot
of areas that currently are downsizing from having tender
service. This allows them to move fish without having everyone
leave the grounds at once. He suggested it would be useful for
setnetters in some areas as well.
Number 0876
DOUG MECUM, Director, Division of Commercial Fisheries, Alaska
Department of Fish and Game, indicated he and Gordy Williams,
Legislative Liaison, had worked with the sponsor on this bill
over the last year or so - since the issue was raised through
the Board of Fisheries process - to figure out how to implement
this new approach of fish transporters. "We feel like we've
worked through all the ... concerns that we had ... with this
new practice," he reported.
MR. MECUM pointed out the need to adopt regulations in order to
implement the legislation, however, which will require going
through all the existing regulations, determining what needs to
be modified, and sending it out for public review and comment.
If the desire is to have it in place before the salmon season,
he told members, it will be doable but very tight. He added:
The other thing about the regulations - and the bill
talks about this - is that there may be fisheries or
areas or times when this practice would not be allowed
because it might conflict with fishery conservation or
management purposes. It might conflict with existing
management plans and regulations that are adopted by
the Board of Fisheries. And I could point out some
specific problem areas ... that we already foresee in
the salmon fisheries, but I don't know if you want to
get into that detail or not. We think ... we have the
authority, as laid out in this bill, to go ahead and
deal with those ... potential problems.
Number 1019
GORDY WILLIAMS, Legislative Liaison, Office of the Commissioner,
Alaska Department of Fish and Game, added to Mr. Mecum's
comments, as follows:
As we worked with the legislative task force ... and
the sponsor on the bill, ... it was recognized that
it's really important to keep the kind of discrete,
accurate information that we get now ... on what's
called the fish ticket, which is written up. The
original bill did not anticipate a fish ticket being
written at this transporter level, and the bill does
now have that important fish ticket being written by
the transporter and then taken to the point of sale.
And that's really important because that's what we
rely on in the department for our discrete management
information. The limited entry commission [the
Commercial Fisheries Entry Commission (CFEC)] relies
on that data for various issues; if they have any kind
of limitation issues or ... economic analysis issues,
they all rely on that information, so it's very
important that ... that information be there. And ...
as Doug Mecum referenced, in our regulations we can
determine, between fisheries, what the amount of
information that might be needed to be required would
be, but it certainly, at a minimum, ... would be the
number of fish and other estimations. In some
instances, we might actually have to require weights,
which would involve ... certified scales.
Number 1126
REPRESENTATIVE HEINZE noted that she'd heard the bill in the
House Special Committee on Fisheries and is very supportive of
it. She requested clarification, though, about the first
paragraph [of the sponsor statement for CSHB 118(FSH)], which
read in part, "It also creates new possibilities for accessing
fresh markets." She asked what those new markets would be and
how it would occur.
MR. MECUM replied:
Well, when we first talked about this, ... this issue
of marketing and quality wasn't really on the radar
screen initially. The main thing, as the bill
sponsor, Representative ... Seaton talked about, is,
in some areas people simply don't have any ability
whatsoever to get their fish to a particular market.
But in some of the testimony that ... we've heard and
in our discussions with the industry, [there could] be
situations where people can improve their quality. ...
If you're out in an area where you're only catching
small numbers of fish and you really can't afford to
run all the way back to deliver them, a group of
individuals acting in a cooperative fashion could get
their fish back to market more quickly. And
particularly if there was, obviously, a fresh market,
... that's very important. So that's, I think, what
it's addressing there.
Number 1220
REPRESENTATIVE HEINZE asked whether, then, it is somewhat a
matter of quality of the fish.
REPRESENTATIVE WOLF said although he thinks it is a good bill, a
couple of individuals had contacted him about [including]
halibut, which aren't in the bill. He asked whether federal
regulations prohibit the transport of halibut, and surmised that
Pacific cod doesn't fall into that [category].
MR. MECUM replied that this certainly doesn't apply to halibut,
which is under an individual fishery quota (IFQ) system. With
respect to Pacific cod, he indicated the department has looked
at it and believes it may be a little more complicated than for
the salmon fisheries; in the cod fisheries, there are both state
and federal management issues. For some Pacific cod fisheries,
for example, federal waters may be open while state waters
aren't; there also may be federal license-limitation issues
associated with having fish on board. He said he'd asked the
staff to examine the issue, although not in great detail, and
although they'd expressed some concerns about it to him, they
hadn't pointed out any fatal flaws that couldn't be dealt with
through adopting regulations. For the Pacific cod fishery, he
concluded that he didn't believe there would be "the same kind
of problem that you're talking about."
Number 1356
REPRESENTATIVE GATTO said he supports the bill but requested
clarification. He asked whether UFA is a bargaining unit or
just an organization, and who can join. He also asked whether
the fishermen and processors support or oppose each other.
MR. MECUM said it isn't all love and kisses.
REPRESENTATIVE SEATON reported that this had gone through the
fisheries task force, which included both large and small
processors who supported this bill.
REPRESENTATIVE GATTO said it looks as though the processors
"lose by this regulation." He requested clarification about how
the system works.
Number 1491
MR. MECUM explained that this system has been in place for some
time. It has always been important, when fish are caught and
sold, that [ADF&G] be able to track who caught the fish and
whether that person is complying with regulations on undersized
crab or prohibited species, for example. Mr. Mecum indicated
the need to be able to go to a processor who has the fish ticket
that was issued with the person's signature on it. The chain of
custody [for that fish ticket] is important for enforcement,
conservation, management, limited entry purposes, child support
issues, and Department of Revenue taxation. He said it didn't
have to do with processors versus fishermen; rather, it was for
adequate enforcement and tracking for commercial fisheries.
REPRESENTATIVE GATTO asked whether that will be lost if this
bill passes.
MR. MECUM answered, "We don't believe so, as long as it is,
again, based on the same system of fish tickets, and that we
have the adequate authority to adopt regulations to make sure
that we have adequate recordkeeping and enforcement."
Number 1562
REPRESENTATIVE GUTTENBERG asked whether any systematic problem
exists in the process that couldn't be addressed [by ADF&G]
through regulations.
MR. MECUM replied:
Not that I have been able to determine. And, in fact,
we have looked at this issue in some depth. ... Over
the course of the past year, we got all of our staff
together; they're involved with this. We did a
background paper. We looked at all of the various
options. And, again, as long as the current
provisions in the bill stand, ... we don't see any
problems that we can't address.
Number 1638
MR. MECUM, in response to a question from Co-Chair Fate about
possibly broadening this bill, said:
We haven't really given a lot of thought ... to this
issue of broadening it to other fisheries. ... The
bill originally was a salmon bill, and it was trying
to address a problem in the salmon fisheries. And we
agreed to broaden it to herring and to the [Pacific]
cod. In the case of the salmon and the herring
fishery, they're completely under state management.
There really are very few, if any, state-federal
issues. The fisheries, for the most part, occur only
in state waters. And, ... for the most part, we have
adequate on-the-ground monitoring and presence to be
able to deal with any issues that might arise in those
fisheries.
As I stated, the bill sponsor wanted to add Pacific
cod, and we had some reluctance for that. But as we
looked into the issue more, we felt that the existing
regulatory authority that's established here would
allow us to work through ... that problem.
But talking about other fisheries, all you're doing is
adding layers of complexity to an already complex
process to try to adopt these regulations and have
them in place in a short period of time. And there
may be some specific issues. ... What I've heard
anecdotally - and I haven't seen any language, and I
haven't had any discussions with anybody personally
myself - but shrimp and Dungeness crab are two other
fisheries that people have talked about adding. I see
some problems with that in those fisheries. ... We're
open to ... any discussions you might want to have
about it.
Number 1743
CO-CHAIR FATE asked Mr. Mecum to describe problems with adding
those two fisheries.
MR. MECUM responded that although there are shrimp fisheries
around the state, for the most part they're limited to Southeast
Alaska because the shrimp resources are "pretty much chronically
depressed" everywhere else. The two big fisheries are the trawl
shrimp fishery, which is beam trawl, and the pot shrimp fishery,
which is the largest-valued fishery and which has a whole set of
management plans and a fairly complex set of regulations
associated with the management of that fishery. He offered some
details, as follows:
In Southeast Alaska there are 19 separate districts
with separate guideline harvest levels that we manage
for on an in-season basis to ensure we don't go over
the quotas, to ensure the sustainability of the
resource. And in some areas, those quotas are taken
in two or three or four days. They're what ... you've
heard referred to as derby-style fisheries. And this
has caused problems in terms of being able to ensure
that we're accurately managing and that we're able to
obtain access to the catches to get biological samples
that we need to manage the fishery and gauge the
health of the resource.
And during the period of time leading [up to this] -
well, probably ten years ago - there was this whole
period of speculation on limited entry, and the
fishery became very intense. And at that point, the
department and the board and the industry worked
together to try to find ways to get this fishery
reined in and under control. And one of the main
issues that they had - the industry brought forward,
in fact - had to do with floating processors. These
are vessels that come into an area, again, where
there's a lot of effort and the quotas are being taken
very quickly, and they purchase from a lot of people
... right on the grounds. What ... it led to was an
intensification of the fishery in those areas.
Number 1857
MR. MECUM continued discussing the shrimp fisheries:
The industry came forward with some proposals to the
board, and the board banned, by regulation, those
floating processors. These fish transporters,
although they wouldn't technically be considered a
floating processor - I don't think, unless they were
actually purchasing and processing shrimp on board -
could lead to the same kind of a problem in terms of
the intensification of the fishery.
And, in fact, one of the main issues with respect to
floating processors had to do with Canadian vessels
coming into Southeast Alaska and taking a large
proportion of the catch and taking it to Canada, which
was running somewhat counter to what we were trying to
do with respect to slower-paced fisheries ... that are
more of a benefit to coastal communities in Southeast
Alaska.
Number 1915
MR. MECUM said he doesn't think the problems are quite as bad
with regard to Dungeness crab, although there are some problems.
Noting that a tender is in a different category, being another
kind of transport vessel, he explained:
If you want to tender your crab, you can do so. And a
way a lot of the people do the fishery is, they have a
large skiff or a smaller vessel of some kind that they
use to actually work the pots. They bring that catch
back to their larger vessel, and once they get a load,
they take it back to the plant.
If you're going to tender other people's crab, ...
right now, you have to issue fish tickets. And ...
all these people would be working with a licensed
processor.
The fish transporter would be a little bit different
in that they wouldn't have a contract with ... a
processor. But the problem we'd run into there, just
like we do with tenders, is having gear on board.
There's different pot limits in the Dungeness crab
fishery, and [the Division of Fish & Wildlife]
Protection has to be able to enforce those different
pot limits. And the way that we've dealt with tenders
in the fishery right now is, ... if they want to
tender their crab, that's fine, but they have to
register with us, and then, if they want to go back
out and fish, they have to unregister. And we've been
able to deal with this problem of having gear on
board, ... when it's open and when it's not, and
things of that nature through that registration
process. So, ... it's quite likely that we would have
to do the same sort of a thing with fish transporters
if [the bill] was expanded to ... that fishery.
Number 1993
CO-CHAIR FATE asked Mr. Cockrell about potential enforcement
problems relating to the bill.
Number 2035
JAMES COCKRELL, Major, Deputy Director, Division of Fish &
Wildlife Protection, Department of Public Safety (DPS), offered
the department's analysis that the bill as written appears
enforceable. He said [DPS] worked hard with the sponsor and
ADF&G to come up with a workable bill. He cautioned, however,
that although DPS is "on line" with the current version, there
would be concerns about expanding it to include Dungeness crab
and shrimp. He acknowledged that he hadn't had time to study
all implications, but concurred with Mr. Mecum with regard to
the Dungeness crab and shrimp fisheries. He said specific
regulations in place now deal with tenders for those two
fisheries. Calling the industry highly regulated, he said there
are probably more complex regulations with regard to [Alaska's]
shellfish fisheries than for crab, Pacific cod, and even herring
fisheries. Without more time to analyze it, he said, DPS
wouldn't support adding the other two fisheries to the bill at
this time.
Number 2105
MR. MECUM pointed out that with the shrimp and Dungeness crab
fisheries in Southeast Alaska - which is primarily where the
fisheries occur - "we have formally established industry task
forces that we work with" that meet annually or more often, as
needed, to sort through issues related to in-season management
and catch reporting in these fisheries. He said although he has
concerns about adding these other species, he would willingly
direct staff to sit down with the industry task forces, which
are formed by the Board of Fisheries, to discuss whether it is
an area to pursue and, if so, how best to do that. He offered
his personal standpoint of wanting to get this bill in place and
adopt these regulations to allow people to do this activity, but
also wanting the opportunity to go through one season, figure
out how it works, and sort through all the problems before
adding layers of complexity - and to have those kinds of
discussions with the industry.
Number 2179
CO-CHAIR FATE alluded to a written amendment [later labeled
Amendment 1], which read [original punctuation provided but some
formatting changed]:
The Child Support Enforcement Division offers the
following observation regarding HB 118, and suggests a
minor amendment.
This legislation creates a new occupational permit
(fish transporter permit) of the type included in
AS 25.27.244(s)(2)(A), which is the statute that lists
state permits and licenses subject to action if the
holder is delinquent in child support payments.
For clarity, the Child Support Enforcement Division
suggests that this legislation be amended to include
the following addition to the child support licensing
statute AS 25.27.244(s)(2)(A)(xvii): Fish transporter
permit under AS 16.05.671(a). This would clarify that
the permit envisioned by this legislation is
specifically added to the list.
CO-CHAIR FATE asked Major Cockrell whether he supported amending
the bill in this regard, whether it would increase his workload,
and whether it was necessary.
MAJOR COCKRELL responded that he didn't know how to comment on
that, and said this is the first he'd heard of such an
amendment. He added, "I don't see where it would add to our
workload. And if it would give [CSED] a way to track the amount
of fish, I don't see where it would affect the bill."
Number 2269
MR. WILLIAMS mentioned discussions he'd had with the Department
of Revenue. He then offered his understanding that CSED wants
discrete information on fish tickets because that agency puts
liens against fishermen who owe child support. He suggested
that under federal law, if someone is delinquent in child
support, occupational licenses can be taken. He suggested that
may be what is being referenced there, and although it may be a
valid concern, he wasn't prepared to speak to that issue.
REPRESENTATIVE GUTTENBERG asked whether that concern could be
written into the regulations without an amendment to this bill.
MR. WILLIAMS clarified that it would be the regulations of the
Department of Revenue, not ADF&G. Noting that he didn't see
anyone present from that department, he again suggested it might
be a valid issue and perhaps a fairly technical issue with
regard to [CSED's] compliance with federal child support laws.
He also pointed out, as mentioned in a prior committee, that
this bill doesn't just apply to vessels that may service
transporters. It also could [apply to] other modes of
transportation, such as using vehicles in the setnet fisheries
in the Kenai area, or when people are trucking their fish or
using an airplane to do so. Although it probably would be used
for vessels, it applies more broadly.
Number 2384
CHRIS GARCIA, Cook Inlet Fisherman's Fund, testified that he was
basically echoing the bill's sponsor. With the changes in the
fisheries resource, he said, trying to reduce costs is very
important. He noted that in some areas in Cook Inlet or Kodiak,
there is no processor running tenders anymore, "and basically
they've been put out of business." He also mentioned trying to
fly fish [to market]. He suggested that passage of the bill
would allow someone who isn't a processor to transport the fish
to a processor, thereby helping everyone concerned. He
specified that he is totally in favor of the bill.
CO-CHAIR FATE turned the gavel over to Vice Chair Masek.
Number 2460
SUSAN SULLIVAN, Program Coordinator, Child Support Enforcement
Division, Department of Revenue, first apologized for the late
submittal of [Amendment 1, text provided previously]. She then
explained that a number of licenses, permits, and registrations
are listed in the statute named in [Amendment 1]; this falls
into that category and should as a routine matter be included.
In response to a question from Representative Guttenberg, she
clarified that the suggested amendment was submitted by CSED to
add a [sub-subparagraph] (xvii): Fish transporter permit under
AS 16.05.671(a). It would become part of a long list of the
types of permits and professional licenses included under that
statute.
MS. SULLIVAN concurred with earlier testimony that the [state]
statute was created as a result of federal legislation. It is
part of the general child support enforcement requirements, she
added.
Number 2566
REPRESENTATIVE WOLF asked whether CSED already has authority to
put liens on occupational licenses and permits through federal
legislation.
MS. SULLIVAN responded:
It does have the authority. And as we state in our
memo [suggested Amendment 1], we're seeking clarity
with this particular amendment ... for the benefit of
anyone who would want to know that this particular
permit is included under the list, including those
permit holders, so that they would be able to see
clearly in statute that they are included.
Number 2646
MS. SULLIVAN, in reply to a question from Representative Wolf
with regard to why the specific listing is necessary, said, "The
federal statutes require that we list the permits, licenses, and
professional registrations that are lienable."
REPRESENTATIVE KERTTULA said it appears the list may be missing
a lot of fishing permits. She asked whether at some point
[CSED] would have to "take in others as well."
MS. SULLIVAN responded, "That's a possibility. I'm interested
to know which ones you notice are missing. We are also watching
House Bill 22. We feel it's a similar situation."
REPRESENTATIVE KERTTULA indicated she'd touch base with Ms.
Sullivan about this, noting that the statute is specific with
regard to what is being covered.
VICE CHAIR MASEK asked whether anyone was present from the
Office of the Attorney General; there was no response.
Number 2721
MR. McCUNE came forward again and said:
Over the years we've worked with the child support
agency to be able to go to the processor, where the
tickets are and where the money's issued. Now,
technically we're not employees of the processors.
But ... with Commissioner Twomley [of the Commercial
Fisheries Entry Commission (CFEC)] we worked out a
deal to ... be able to go to the processors and be
able to find out and issue lists of people that are
behind in their child support, because ... federal law
now says whether you miss one payment or [more],
you're behind in child support. So automatically [if]
you're behind, ... they put out a lien. So, we made a
list available. [CSED] makes a list, and we give it
to the processors. And if you're delivering to that
processor, then they voluntarily take out ... the
money.
MR. McCUNE noted that these people aren't employees of the
processor [and thus taking the money out is voluntary].
REPRESENTATIVE KERTTULA mentioned the license itself, however,
and offered her understanding that "that other statute" allows
CSED to pull licenses.
Number 2795
MARY McDOWELL, Commissioner, Commercial Fisheries Entry
Commission, mentioned a law now under AS 16.05. She explained
that CFEC, at the time of application, collects social security
numbers from permit holders when they renew their permits every
year. By law, CFEC can share that information with [CSED] for
purposes of child support [collection]. She noted that sunset
legislation before the legislature this session will "roll
forward some of the child support provisions, and that is one of
those provisions." She added, "We're working with the sponsors
of that bill on both sides."
MS. McDOWELL clarified that the earnings of fishermen already
are covered under the child support provisions. The question
now is whether the earnings of the transporter will be covered;
that is new. She noted that this isn't actually an occupational
license, but is a commissioner's permit. She suggested it is
worth exploring the need to include a provision for this.
Number 2858
MR. McCUNE offered his recollection that permits had been
omitted from "that statute" because a person who cannot go
fishing cannot pay child support.
MS. McDOWELL clarified that she wasn't talking about taking
permits [for a child support debt], but about taking earnings
out of the fish ticket. In response to Vice Chair Masek, she
said this an issue for the Department of Revenue.
MR. McCUNE suggested a possibility "that if you're using a
plane, I guess that people might actually pay that person." He
said he didn't have a problem if [CSED] feels a need for it, but
still thinks "they're covered under this." He indicated he
doesn't have a legal background.
VICE CHAIR MASEK expressed the hope of receiving comments from
the attorney general or another attorney with regard to the
language suggested by CSED.
Number 2938
REPRESENTATIVE SEATON told members:
On the fish themselves, we're not talking that,
because the fisherman retains ownership ... of the
fish; that never transfers ... to the transporter.
The transporter, [if] it is a fishing vessel, has to
have the fishing vessel license; each person on board
has to have a commercial fishing ... license. If it
was an airplane, you would have airline licenses, and
you would have all the cargo - those licenses. This
is basically a free permit. It's a commissioner's
permit. It permits you to do something else, but it's
really not an occupational licensing permit. So ...
I'm not opposed to [CSED's] ... idea, but ... this
permit is something that is quite, quite different
than a vessel license or a guiding license or
something else. This ... just allows ... [ends
midspeech because of tape change].
TAPE 03-12, SIDE B
Number 2989
REPRESENTATIVE SEATON said his only problem is that this bill is
actually just addressing AS 16.05 [and AS 16.10] and that CSED
is asking that an entire new modification to another Alaska
Statute be added. He noted that he thought that might fall into
a separate category.
Number 2958
REPRESENTATIVE WOLF posed a hypothetical scenario, and he
expressed concerns about the possibility that fishermen [other
than those owing child support] may be affected by CSED's
[placing a lien on fish] if it's a free permit. He added that
[if that were the case], he would be opposed to [amending the
section].
REPRESENTATIVE SEATON reminded the committee that under the
bill, the ownership of fish would never transfer to the
transporter. The "transport-fisherman" never owns the other
fish; he/she is simply given the authority to move those
fishermen's fish along with his/her own from the [fishing]
grounds to the dock. However, he/she would have to write out
the fish ticket, the card would have to be stamped, and there
would be much better tracking of who owns those fish because the
fish ticket has to be made out with the permit card at that
time, he explained. Representative Seaton said there have been
a number of instances in the herring fishery, currently, where
people "kind of co-op" and put their fish on one boat, but it's
"kind of illegal" to do that, so they all get put on one
person's card. So, CSED doesn't have a good "handle" on knowing
who owned all of the different fish on that boat, and to "kind
of get around this" and work within the current law, people just
"fudge" and say they were [someone else's] fish, he said. He
indicated that if a fisherman had a CSED lien against him or
her, often, another fisherman would [take the fish] and write it
as an expense to that fisherman so that CSED would not know
about it. He said this bill will give CSED much better record
keeping in knowing whose fish were harvested and on what cards.
Number 2837
REPRESENTATIVE WOLF expressed concerns about putting fishermen
in jeopardy because one fisherman has a child support lien
against him/her. He said he didn't have enough faith in CSED to
allow it to make that judgment call.
MS. SULLIVAN indicated two different concepts were being
discussed and said "we're" not discussing, at this point, about
how the fish are sorted out, although Representative Seaton's
explanation was excellent and [CSED] appreciates the detail with
which those particular issues, keeping track of whose fish are
whose, are treated in this bill. She said that is not the focus
of [CSED's] particular suggested amendment [Amendment 1]; it has
more to do with the idea of a professional license. If someone
owes child support and refuses to pay it, refuses to discuss the
issue with [CSED], and is flagrantly in violation of his or her
child support order, and that person has a professional license,
[regardless of his/her profession] CSED has the authority,
through federal and state statutes, to [place a] lien on that
person's license, permit, or registration, she explained. She
said [CSED] doesn't want to take the permit, license, or
registration, and doesn't have any use for it, but it has been a
very useful tool in getting the attention of a flagrant
violator. Ms. Sullivan explained that the idea is to make the
statute clear to a person that is a fish-transport permit holder
that the permit is subject to lien just as any other
professional license is.
Number 2742
REPRESENTATIVE SEATON pointed out that no one can operate with
just a transporter's permit; a vessel license and an Alaska
business license would also be required. He said those licenses
are paid for and have some value attached to them. A
transporter permit allows a person to do something a little
different, he explained, but that person cannot operate outside
of the business license without having a vessel license and
those kinds of things. He said it's not as if this is a new
classification of things that allow a person to go off and do
something without having the other [required] licenses.
REPRESENTATIVE KERTTULA, noting that those were excellent
points, said the only problem is that the CSED statute that
allows them to [place a lien on a license] specifically exempts
the business and vessel licenses. She said it is a difficult
question whether the [transporter's permit] should be a license
that CSED could place a lien against. She expressed concern
about the statute, but noted that it says "including these
things." So, she said, it might be read broadly, but then it
continues with a very specific list of licenses it could attach
to. She indicated it was problematic to her but noted that she
could see the good that the statute would do. Representative
Kerttula asked, if a fish transporter were to sink, whether the
fisherman whose fish were being transported could sue the
transporter for recovery.
Number 2639
REPRESENTATIVE SEATON said yes; the fisherman that owns the fish
controls the fish until the [transporter] person acts as a sales
agent for the fisherman at the processor, so that would depend
on the private contract that the fisherman has with the
transporter. He said it is one of the reasons for having a
permit, so that everybody will understand that the fisherman
retains ownership of his or her fish. Additionally, he
explained, if the fisherman's group wants to require cargo
insurance or something similar, it would be something that they
do in their private business contract with the transporter.
Number 2517
BRUCE SCHACTLER, Board Member, United Fishermen of Alaska (UFA);
President, United Salmon Association, testified, and noted that
he was in support of [HB 118]. He explained that there was a
short discussion during a recent UFA board meeting that this
[bill] is needed quite badly to make [fish transporting] legal.
He said [fish transporting] is something that [had been
practiced] since he'd been in the fishery - for the last 35
years.
MR. SCHACTLER offered the herring and salmon fisheries as an
example, and he said it's done out of necessity in virtually
every fishery in the state. He said [HB 118] is viewed as a
"housekeeping" bill that would legalize something that is a
common practice in the fishery today, and that getting the cost
down is vital because of the [high] price of fuel and the lower
[market] value of many of species of fish. Mr. Schactler
explained that the fresh-fish salmon markets that are not being
facilitated, used, or accessed by the traditional processing
industry make it more viable for each individual fisherman to do
[more to lower costs]. This is something that these private
contractors are going to be needed for "if we're going to stay
out of jail for doing what we've been doing forever," he said.
He encouraged the passage of the bill. Mr. Schactler thanked
Representative Seaton for his work on the bill, and he commented
that this "shows you the value of ... one of your new members."
Number 2366
CHRIS BERNS testified, noting that he and his family fish
commercially. He said this bill would make it legal to do "what
I've been doing for many years anyhow," and that it makes sense
in a low-volume fishery that is a long ways from town or in a
slow period when not many fish are being caught. He said [often
a fisherman] would throw 300 to 400 pounds of fish onto another
vessel to be hauled into town. He said there is a trust factor
involved and fishermen sort it out at the dock. Mr. Berns said
everybody's happy because his/her fish got to town and are paid
for, instead of having to spend more money running into town or
to a processor and lose money by not fishing.
MR. BERNS explained that he's been registered as a herring
tender in Kodiak but he also [participates] in a gillnet
fishery. He said there's a seine fishery going on during the
same time and sometimes he can make an extra $1,000 running a
seine fishermen's fish to town along with his own. He said he's
going that way anyhow, and it allows the seine fishermen to stay
on the grounds and continue to fish. He described the practice
as a commonsense thing; he said there has always been a "gray
area" with regard to hauling fish. It's not a scam, he said; it
would be good for jig cod because it's a low volume [fishery].
A catch might range from 2,000 to 3,000 pounds a day and require
a fisherman to make 10-hour run to town and back, he said; it
gets to point where it's just a wash economically. Mr. Berns
said he really appreciated the bill and suggested that it's a
good idea.
Number 2211
RICK ELLINGSON testified, and he described himself as a
fisherman who had been involved in nearly every fishery for the
last 25 years including [participating] as a setnetter on the
south end of Kodiak island for 20 years. Mr. Ellingson talked
about the condition of the salmon fisheries, and he said in an
effort to maintain a "bush lifestyle," he had tried to branch
into other fisheries. Unfortunately, he said, with the loss of
the cannery at Alitak, with "Columbia Wards" folding, he'd lost
his halibut market and wanted to break into the Dungeness crab
fishery. Mr. Ellingson said doing the small-boat fishery with
an open skiff is unsafe, and it is infeasible to run 130 miles
to Kodiak to deliver. He said the kind of volume he does
fishing with his children wouldn't work running a regular
tender.
MR. ELLINGSON said local [ADF&G] and [Alaska State] Troopers, in
discussions, agreed with him that he should be able to send [his
catch] in on another fishing vessel; however, they said the
legislation just isn't there. He said he was excited when he
saw HB 118 and recognized the possibility that maybe it would
branch into the Dungeness crab fishery. He said the only
problem he'd heard about was regarding stock separation, and he
explained that the use of small barrels on the [transporter
vessel] to hold the Dungeness crab in the water could provide
for stock separation. He said Kodiak does not have pot limits,
so it wouldn't present a problem, and he urged the committee to
add the Dungeness crab fishery to the bill so that fishermen can
continue to make a living.
Number 2110
REPRESENTATIVE GATTO asked if the United States Coast Guard
(USCG) would hold the fish if it was holding a [transporter
vessel] that had been seized for illegal [activities]. He also
asked whether the fisherman having his or her fish transported
was taking some risk.
MR. McCUNE remarked, "I don't know if I want to get involved
with all of the illegal activities." He explained that both
state enforcement and the USCG could seize the fish if [illegal
activities] were to occur during the transportation of fish and
would have the same ability to seize the vessel. It is a
possibility, he added.
REPRESENTATIVE GATTO asked what action would be taken by the
USCG to prevent seized fish from spoiling.
MR. McCUNE replied that either the USCG or state enforcement
would take the fish to a fish processor, but the [profit from
the fish] would also be seized until after court proceedings.
REPRESENTATIVE GATTO said he was looking at the risks, but
didn't want change anything in the bill in that respect, and
that he wanted this information on the record.
Number 2011
GEORGE UTERMOHLE, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, testified. Mr. Utermohle noted that he only had a copy
of the bill, did not have a copy of Amendment 1, and wasn't sure
what issue CSED had brought forward.
VICE CHAIR MASEK summarized Amendment 1 and indicated that she
was unsure whether it would fit in with the bill.
MR. UTERMOHLE explained that he is unfamiliar with the lists
that CSED is referencing. He relayed his understanding that
some provisions can affect a person's license to practice or
engage in certain professions because of his or her inability or
failure to pay child support. Mr. Utermohle said he's unsure
what particular commercial fishing licenses and permits might be
included on [CSED's] list, and he didn't know how the particular
transporter permit created by this bill would fit into the
scheme that is currently in place.
Number 1856
VICE CHAIR MASEK turned attention to a letter from Cordova
District Fishermen United (CDFU) that expressed concerns about
enforceability, how this legislation might affect the ability to
monitor harvests, and the potential for harvest abuses that the
system may enable.
MAJOR COCKRELL said it was indicated during extensive
discussions with ADF&G and the bill's sponsor that this bill
wasn't expected to cause any enforcement concerns that the
department doesn't currently have and that the department views
the current bill as enforceable.
VICE CHAIR MASEK turned attention to an analysis in the fiscal
note from the attorney general's office, which read:
Whether passage of this legislation will have a fiscal
impact on the Criminal Division depends on the number
of new prosecutions that result. Without additional
experience, however, we have no way of estimating how
many new cases there will be, and must state an
indeterminate fiscal impact.
VICE CHAIR MASEK asked if many cases arise over fish
transporting.
MAJOR COCKRELL said on a statewide basis, the division deals
with a small number of cases involving fish transporting.
Normally, it deals with a permit violation where the permit
holder wasn't on the grounds or a fisherman or tender took fish
from an unlicensed fisherman who didn't have a permit. The most
common scenario, he explained, is where the permit holder loans
his or her permit to another family member while working another
job. In Bristol Bay, he said, after the peak of the run a lot
of permit holders like to run back to another state and leave
their permits with their deckhands. Major Cockrell said tenders
are seldom charged and usually only during investigations
involving the purchase of fish from an unlicensed fisherman. In
that case, he said, [the tender] should've done a better job of
checking for the permit or getting the signature of the permit
holder.
VICE CHAIR MASEK asked for the sponsor's opinion on Amendment 1.
Number 1654
REPRESENTATIVE SEATON turned attention to the bill packet and
talked about "component number 490" from DPS; he said the fish
and wildlife protection cases were looked at and a zero fiscal
note was provided. Representative Seaton said he didn't have a
real problem with Amendment 1. However, he said, the bill
addresses 16 statutes and the [amendment] addresses 25
[statutes] and he didn't know how much of a change to the bill
would be needed. He said the permit is not like an occupational
permit, which gives one the ability to have an occupation; it
simply requires somebody within an occupation to do fish tickets
and [fulfill] certain aspects before transporting another
person's fish to the processor. He suggested [moving] the bill
out of committee, and once [Mr. Utermohle's] opinion is
received, forwarding [Amendment 1] "to the other side" if it's
determined to be necessary.
REPRESENTATIVE WOLF said he agreed with Representative Seaton.
He suggested that the transporter is not making money on
transporting the fish.
REPRESENTATIVE SEATON, in response, said it would depend on the
arrangement; a fisherman could hire a tender but the permit
itself would not allow tendering. There would still be a
requirement for a vessel license, business license, and any
other required professional and occupational licenses. He
suggested the bill would allow another function to be performed
within the industry, but [would not create] an occupational
license in itself.
Number 1427
REPRESENTATIVE WOLF suggested that a tender acts in a different
capacity than a transporter.
REPRESENTATIVE SEATON said one scenario is that a transporter
could be one of the participating fishermen. However, he said,
if the catch is too much for the small vessels, the fisherman
might hire a separate vessel, such as a tender, to run his/her
fish into town. Representative Seaton remarked, "I want to
segregate the word 'tender,' because that denotes somebody that
is under contract ... as an agent of a processor, and this would
be an agent of the fishermen, taking his fish into town." He
said one could hire another fishing boat to transport fish that
isn't engaged in that fishery. Representative Seaton suggested
it is more a waiver than a permit, because it waives to allow
[the transportation] of someone's fish as long as the fish
ticket is made out and all of the records are done.
REPRESENTATIVE WOLF reiterated his concern about putting
individual fishermen at risk of losing their catch because a
tender or transporter or another fisherman could be in jeopardy
with a lien.
REPRESENTATIVE SEATON, in response, suggested the chance would
be remote because the statute is very clear that the fisherman
retains ownership of the fish, and the transporter never becomes
the owner of the fish. He compared it to hiring a truck for
transportation services.
VICE CHAIR MASEK verified that Mr. Utermohle had received a copy
of CSED's suggested Amendment 1.
MR. UTERMOHLE explained that CSED is asking for a fairly
technical amendment to the bill to include transporter licenses
in the same category as commercial fishing crewmember's
licenses. He said those licenses can be denied to a person if
the person is in arrears, in a substantial matter, in child
support. In this case, he said, this particular permit is very
similar to the commercial fishing vessel license in that regard.
REPRESENTATIVE KERTTULA asked Mr. Utermohle if he was concerned
that the transporter permit isn't the right kind of occupational
license to be included in the list. She said she didn't know
enough about federal law regarding this issue to know, really,
what the definitions are of the types of occupational licenses
that should be on the list.
Number 1040
MR. UTERMOHLE, in response, said (indisc.) developed a list of
licenses that are subject to those provisions of the Child
Support Enforcement Act. He said the crew member's license is
one of the licenses on the list and the list specifically
excludes entry permits or interim permits, so they are not
subject to this provision, but the transporter permit that is
created in the bill is more in the nature of the license that's
issued to crew members.
REPRESENTATIVE SEATON said the commissioner quite often issues
permits for participation. He said octopus fishing requires not
only a CFEC card, but also a local permit that authorizes the
activity and requires the participant to report his or her catch
every 30 days. He said there's no charge for that permit; it's
simply an additional permit, and a CFEC permit, which includes a
crew license, is still in place and still required. He said he
is trying to figure out if this is free permit that allows
participation in a particular fishery. Does this really fit
into the category of this occupational license, he asked.
Number 0877
MR. UTERMOHLE, in response, said to a large degree the
determination of whether a particular license or permit gets
added to this list is a matter of policy for the legislature to
decide. The transporter permit, he said, in a sense, does
create a new occupational activity, though it doesn't seem like
it could, in any way, be used to generate revenue. However, it
does allow a person to transport fish on behalf of a commercial
fisherman. He said the bill does not require the transporter to
be a commercial fisherman to have an entry permit, or to even
have a crew member license; it creates a category between a crew
member and a permit holder, and allows a person to possess
somebody else's fish and transport that fish to a buyer.
Number 0810
REPRESENTATIVE KERTTULA remarked, "I don't think it's ...
analogous to an entry permit because that's clearly a whole
different section of the statute ... dealing with discrete
fisheries rather than what we're talking about in terms of
transporting, right?" She suggested that the entry permit would
not be affected.
MR. UTERMOHLE, in response, said yes; this does not impede a
person's ability to exercise his/her rights under an entry
permit or interim use permit.
Number 0763
REPRESENTATIVE SEATON indicated he didn't have a problem with
listing [the item in Amendment 1] if it's appropriate. He asked
whether the language could be added in an additional section in
the bill. He said if that could be done, he would be fine with
it.
MR. UTERMOHLE said an amendment to the bill adding the
transporter permit to the list of licenses subject to AS
25.27.244 would be a technical, conforming change to the bill;
there would be no problem with adding that provision to the
bill.
Number 0677
VICE CHAIR MASEK asked where it would fit best in the bill.
MR. UTERMOHLE said a new section would be added to amend AS
25.27.244(s)(2)(A) by adding a new provision [(xvii)] on page 5,
following line 17, adding a new bill section.
Number 0602
REPRESENTATIVE GATTO moved to adopt [Amendment 1, text provided
previously]. There being no objection, it was so ordered.
REPRESENTATIVE GUTTENBERG suggested that [the bill] is something
that works well.
Number 0507
REPRESENTATIVE GUTTENBERG moved to report [CSHB 118 (FSH)], as
amended, out of committee with individual recommendations and
the accompanying fiscal notes.
REPRESENTATIVE GATTO indicated he would like to offer an
amendment.
Number 0476
REPRESENTATIVE GUTTENBERG withdrew his motion.
REPRESENTATIVE GATTO began discussion of Amendment 2. He
indicated that he is in favor of a free market, and he said he
liked the bill so much he just wanted to make one [small
amendment]. He turned attention to page 2, line 30, and he said
he would like to amend the section by deleting "may" and
inserting "shall", and by deleting "the commissioner considers";
thus it would read "the commissioner shall adopt regulations
necessary to implement this section".
Number 0366
REPRESENTATIVE SEATON said he didn't personally have a problem
with [Amendment 2], but he suggested that someone from the
department should speak to it because he is not familiar with
how the wording would affect the regulations or whether the
department feels it would be better to retain that language.
Number 0299
MR. MECUM suggested that [the question] was an issue for [Mr.
Utermohle] in terms of discretionary language versus mandatory
language. He suggested that the language wasn't necessary for
the to bill work, and he referred to it as "boilerplate"
language; he said it can be found throughout a number of laws
and regulations. He remarked, "It addresses one point. If
there are no regulations that are necessary to implement it,
then why would it be mandatory?"
REPRESENTATIVE GATTO suggested that the current legislature has
a friendly relationship with the administration, but it hasn't
always been that way, and there have been instances in the past
when commissioners have not adopted regulations at the
insistence or [caution] of the legislature. He remarked, "If
the regulations aren't adopted, would it be legal to obtain a
transporter's permit; ... there would be no permit in place to
obtain."
MR. MECUM deferred the question to [Mr. Utermohle], and he
suggested that the bill would make a fish transporter permit
attainable; however, he noted that he could be wrong and that
regulations might have to be adopted to issue the permit.
REPRESENTATIVE GATTO suggested that the language would encourage
free enterprise, and he said he wanted to see the regulations
actually happen, and not have someone who says, "I'm not sure;
it's only requesting that ... they adopt regulations necessary
to implement this section."
Number 0047
MR. MECUM indicated that he understood Representative Gatto's
intention, and he said there is currently a task force of six or
seven staff working on developing these regulations, which have
to be in place by June 15.
REPRESENTATIVE GATTO remarked, "Then there's really no problem."
MR. MECUM, in response, said that he would guess that there's
not [a problem] and that it's a question of whether the language
is appropriate. He again deferred the question to [Mr.
Utermohle].
TAPE 03-13, SIDE A
Number 0001
MR. UTERMOHLE said there are two perspectives that one could
take with the amendment: one perspective is that the amendment
would require the commissioner to develop the regulations to
implement this legislation. When the language is "shall adopt
regulations to implement this section", the issue regarding
whether the statute is sufficient enough to support the issuance
of the permit in the absence of regulations is raised. He said
the legislation is currently drafted such that the commissioner
should find that the statute itself isn't sufficient enough to
protect the interests of the department and the resources to
allow the commissioner to adopt regulations as he/she considers
necessary. The use of the word "shall" suggests that the
legislation itself is inoperable without additional regulations
adopted by the department, he explained.
REPRESENTATIVE GATTO suggested that the legislation couldn't
stand alone if a commissioner decided not to develop
regulations.
MR. UTERMOHLE said under this legislation, it's possible for the
commissioner to issue these permits without additional
regulations.
Number 0205
REPRESENTATIVE SEATON called attention to page 3 of the bill,
and he suggested the regulations are essentially restricting the
use of the transporter permit, and the legislation as it is
written authorizes the transporter permit. He said the
regulations are being issued to restrict the usage in certain
fisheries with problems, and the regulations are used to
restrict the permits when determined necessary. Representative
Seaton said he preferred the original language because [he
didn't want the department] to have to issue a lot of
restrictions on the permits. He requested that Amendment 2 be
withdrawn.
REPRESENTATIVE GATTO suggested that the language "the
commissioner shall adopt regulations necessary to implement this
section" hardly seems like a hostile statement. He said the
language instructs the commissioner to do something.
REPRESENTATIVE SEATON agreed, but he pointed out that the
language found [on page 3, line 3] of the bill continues by
saying, "permits may not be issued because of". He said the
criteria for the regulations are restrictive instead of
permissive, and the legislation authorizes transporters to
obtain a permit, unless the commissioner issues regulations that
restrict the ability of a transporter permit within a particular
fishery for the specified reasons.
REPRESENTATIVE GATTO called attention to pages 1 and 3 of the
bill; he suggested that this legislation includes a lot of
"mays" in the language.
VICE CHAIR MASEK suggested that the current language should
remain in the bill, and she noted the importance of flexibility
with regard to the issue highlighted by Representative Seaton.
Number 0637
REPRESENTATIVE GUTTENBERG asked if the word "shall" would compel
the administration to adopt regulations if it doesn't desire to
do so.
MR. UTERMOHLE confirmed that the word "shall" is mandatory and
therefore commands the commissioner to adopt regulations.
REPRESENTATIVE GATTO said the "shall" found on page 2 doesn't
interfere with the "may" on page 3.
Number 0780
A roll call vote was taken. Representatives Gatto and Lynn
voted in favor of Amendment 2. Representatives Wolf, Heinze,
Guttenberg, Kerttula, and Masek voted against it. Therefore,
Amendment 2 failed by a vote of 2-5.
Number 0817
REPRESENTATIVE KERTTULA moved to report CSHB 118(FSH), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
118(RES) was reported from the House Resources Standing
Committee.
HB 113-DISCHARGE PREVENTION & CONTINGENCY PLANS
VICE CHAIR MASEK announced that the final order of business
would be HOUSE BILL NO. 113, "An Act extending the renewal
period for oil discharge prevention and contingency plans; and
providing for an effective date."
VICE CHAIR MASEK turned to public testimony.
Number 0923
CHERYL FULTZ, Southeast Alaska Petroleum Resource Organization
(SEAPRO), testified, noting that SEAPRO is an oil-spill response
cooperative. Ms. Fultz said she was in support of HB 113.
Number 1065
REPRESENTATIVE LYNN moved to adopt CSHB 113(O&G). There being
no objection, it was so ordered.
Number 1094
LARRY DIETRICK, Director, Division of Spill Prevention and
Response, Department of Environmental Conservation (DEC), read
the following from written testimony:
[The] CS for HB 113 will streamline the state's
permitting process by lengthening the time for renewal
of oil discharge prevention and contingency plans from
the current three years to five years. A five-year
renewal period will streamline the review process for
[the] industry while maintaining Alaska's strong spill
prevention and response standards. Oil discharge
prevention and contingency plans are public-noticed,
reviewed, and approved by the Department of
Environmental Conservation.
Oil discharge prevention contingency plans are
required for operators of oil terminals, refineries,
crude-oil transmission pipelines, oil exploration and
production facilities, oil tank vessels, oil barges,
nontank vessels of over 400 gross tons, and railroad
tank cars. There are multiple benefits from the
change proposed by the bill. The bill furthers the
goal of permit streamlining with no loss of
environmental protection, and complements initiatives
currently being undertaken by the department to shift
the emphasis away from the administrative review and
approval process, to field verification of response
capability.
The bill will significantly reduce the administrative
burden on the regulated community and will shift the
emphasis from paperwork to performance. The reduction
in paperwork will increase stability of operators and
the department to focus on spill prevention and
facility operation. The change will allow operators
more time to make practical enhancements to their
spill prevention and response capabilities.
The change will also improve environmental protection
and preparedness through increased field presence and
the ability to work directly with operators to ensure
response readiness through onsite facility and vessel
inspections, spill drills, and exercises. The change
will make the state renewal cycle consistent with the
five-year renewal cycle for federal oil spill
contingency plans required under the Oil Pollution Act
of 1990, as well as those of other West Coast states.
Number 1245
REPRESENTATIVE KERTTULA asked Mr. Dietrick if he had previously
testified before the committee on [HB 113].
MR. DIETRICK, in response, relayed his understanding that this
is the first time this bill had been heard by the committee.
REPRESENTATIVE KERTTULA said the committee had information that
the RCAC [Regional Citizens' Advisory Council], a citizens'
group established after the Exxon Valdez oil spill, is quite
concerned with the legislation. She said one of the things that
was mentioned was that the federal contingency plan has a one-
year amendment process. She asked Mr. Dietrick if he was
familiar with that, and whether that could possibly be a better
solution than going to a three-year cycle. She asked how it is
currently handled.
MR. DIETRICK, in response, said the [state] does not participate
in the annual update that's referred to by RCAC; the reviews are
conducted on a federal level. He said he didn't have firsthand
knowledge of how rigorous [the review is], and he suggested that
the state process, as it exists currently, is better than the
federal annual renewal process. Mr. Dietrick said the state
basically has the "equivalent of the Evergreen process," and
that any changes made to a plan must be made on a continuous,
real-time basis under current state law. He suggested that one-
year or three-year renewal cycles are not important; he said
existing state law requires updates on a real-time basis. He
told the committee that updates and notifications of
nonreadiness are provided on a continuous basis, and he
suggested that the state structure is superior to the annual
renewal cycles under the federal system.
MR. DIETRICK said the state is currently under a three-year
renewal cycle but the federal renewal cycle is every five years
and this legislation will change the state renewal cycle to
every five years so that it is consistent with the federal
renewal cycle.
Number 1451
REPRESENTATIVE HEINZE referred to comments from the RCAC that
expressed concerns about [best available technology (BAT)]. She
asked Mr. Dietrick when the last BAT conference was.
MR. DIETRICK said the regulations for BAT were put into place in
1997, and called for a conference every five years, which meant
the first conference was due in 2002. He said the department
had requested funds for a BAT conference and was awarded those
funds last year for the purpose of initiating what would have
been the first conference under the regulations. Mr. Dietrick
said a workgroup had been put together and is now planning that
conference with the appropriation made by the legislature last
year.
Number 1522
REPRESENTATIVE HEINZE asked Mr. Dietrick if he thought switching
to the five-year cycle would affect BAT [reviews].
MR. DIETRICK said the BAT analyses that have been performed are
theoretical reviews; it is as important to test these as it is
to review and approve them. He explained that BAT analyses do
not change much over the review cycles because they're not
tested and the technology development is rather slow. This
change will allow [the department] to test the BAT analyses that
have been provided in the individual plans and to seek
corrective actions if they are flawed or have problems. He said
he thought this will be an improvement that will put the BAT
reviews on the same five-year cycle now that the conference is
scheduled for.
Number 1593
VICE CHAIR MASEK indicated HB 113 would be held for further
consideration.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at [3:01
p.m.].
| Document Name | Date/Time | Subjects |
|---|