HB 216-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS  CHAIRMAN THERRIAULT informed committee members he had prepared a committee substitute (CS) for HB 216. On page 2, line 19, new language was inserted into the intent section. His concern was that there are a number of statements under the findings section that use limiting language such as "rare instances" but the similar limiting language did not present itself in the first intent section clause that spoke to that section of the bill. He asked the drafters to insert language so the findings section flowed to the intent. His concern was that if the courts were looking at that section of statutes, they would look to the Legislature's intent. He didn't know that they would look at the findings and determine the stated finding was clearly legislative intent. This is of particular concern when an intent section doesn't have the same limiting language. He asked Representative Scalzi whether he had any comments on the CS. REPRESENTATIVE SCALZI said he was trying to understand the comfort level, but he had no problem with the added language, "in rare circumstances where immediate action is necessary," on page 2, line 19. CHAIRMAN THERRIAULT said his suggestion, as Chairman, was that if they couldn't make the clarification, he would have preferred to be silent on the intent and findings. He asked Senator Halford whether he intended to make a motion to adopt his proposed amendment. SENATOR HALFORD said he didn't intend to move the entire amendment and he needed a few moments before he could proceed. CHAIRMAN THERRIAULT called a brief at ease at 4:55 p.m. and gaveled the meeting back to order at 4:57 p.m. SENATOR HALFORD referred members to page 3, line 20 through 22 of the 4/12/02 CS (Version P). He made a motion to delete, "if the commissioner concurs in the determination of the board that a fishery conservation issue exists and that the issue cannot be resolved under current regulations,". The language substantially changes the relationship of the board and the commissioner to the detriment of the board. Other than the day-to-day management, the board should set the policy, not the department. This commissioner of this department is selected from a roster provided by the board. The board transitions through different governors and has more continuity than the commissioners. CHAIRMAN THERRIAULT asked Representative Scalzi for verification that this section came from regulation and the language that would be deleted was the language he was trying to add into statute. REPRESENTATIVE SCALZI replied that was correct. Senator Halford's proposed change would keep the language that is currently in regulation. It would be a moot point to the bill for that section. The intent is to get the commissioner in concurrence with the board and with the conservation issue that does exist. He agreed that the governor appoints the commission based on the applicants presented by the board. However, in the legislative intent, the commissioner is the biological manager and that is the argument of the bill. There must not only be consultation, but also concurrence that a biological issue or concern does exist. He said the commission is more than just a figurehead, he is the steward of the resource and that is why the language is written that way. CHAIRMAN THERRIAULT said Senator Halford moved proposed amendment 1. He asked whether there was objection from committee. SENATOR DAVIS asked the Chairman whether she missed something. She wondered why they weren't addressing the other parts of the proposed amendment. SENATOR HALFORD said he didn't offer the entire amendment as written. He said he just offered the change as outlined above, but the sponsor said his amendment deletes Section 3 from the bill. REPRESENTATIVE SCALZI agreed. The purpose of the bill is the sentence Senator Halford wanted to remove by amendment. It is currently the board's regulatory language except for the addition that the commissioner concurs in the determination of the board. He wants the regulatory language and also the concurrence of the commissioner that a conservation issue exists. SENATOR STEVENS asked the sponsor for further explanation. REPRESENTATIVE SCALZI replied the board could amend their own agenda, that's not an issue. An agenda change request, which is what the bill speaks to, is to add something to the agenda in an out of cycle meeting. If they were to take up an issue out of cycle, they would do it for one of three reasons (1) address an unforeseen consequence (2) correct an error in regulation (3) a conservation issue or purpose. So they don't take it out of cycle as an abuse to the system, scientific data should be presented to show that a conservation issue does exist. You get that concurrence with the commissioner of fish and game. CHAIRMAN THERRIAULT added you would get that concurrence through the area manager. REPRESENTATIVE SCALZI said the commissioner would have to go to the biologists to get the correct data. SENATOR STEVENS asked if that wasn't the same pool of resource that the board of fish is supposed to draw their scientific knowledge from so in reality it would all be the same scientific evidence. Both the commissioner and the board would be using the same pool to concur. REPRESENTATIVE SCALZI said that is correct. The board has the same pool. They have the ability to listen to their biological managers. SENATOR STEVENS said that by passing this law they would be forcing the board to use the scientific information that is there because if they don't the commissioner will. REPRESENTATIVE SCALZI said they couldn't choose to ignore it if this legislation is passed. SENATOR HALFORD said the issue is the basic philosophy of whether this department is run at the will of the board or the board is run at the will of the department. This is their own internal agenda. The catch all that they use to go back to another issue is the one that is being amended to require the concurrence of the administration. He believes this substantially reduces the power of the board in terms of what it is going to consider. If they wanted to do that they would probably have the legislative liaison in charge of the executive branch in charge of the Rules Committee. CHAIRMAN THERRIAULT said he has heard that the workload of the board is heavy and in part that is because of all the out of area and out of turn issues that are put on the agenda. SENATOR HALFORD replied the board's attorney said he didn't think the board would support the legislation. It's a matter of balance shift. He believes the administration has a great deal of power in the process and this would enhance the executive branch direct power and reduce the constitutionally created authority of this board system of management. He agreed they have lots to do, but during his tenure the up river down river, commercial non- commercial interests have gone back and forth on this issue depending on whether they feel they have board or administration support. This legislation proposes to change a basic process that has been in existence for a long time. "I think it's balanced now and I think this would change that balance." SENATOR STEVENS said if the effort were for a power shift they would be addressing the commissioner's concurrence to all three of the components. This only goes to the one conservation issue. The board still has the authority to amend the agenda based on an error or unforeseen consequences of a regulation. SENATOR HALFORD replied this is a board that frequently ends up in court on specific issues. To correct an error you must prove it was done in error and something in the record is wrong. Regarding unforeseen consequences, if a minority on the board argued that something was going to happen and then it did, it's not an unforeseen consequence. It was expected but not the prevailing side of the issue. This is a board that has a continuous record of challenges on these types of issues. The point that is proposed for amendment is challenged the most and he thought Representative Scalzi would agree. REPRESENTATIVE SCALZI said he did agree. Seven times in the last ten years they have used that point in one area in particular. They used it twice in the Copper River area and the legislative intent is that there is stability in the board process. Recently in the Lower Cook Inlet and Kodiak area he had sports fisherman angry with him because they limited the Kodiak area to five King Salmon. He told them it is an allocation issue and the board's purview. They responded the board didn't base it on scientific data and they were told the board didn't have to. He believes the integrity of the board process is at stake and that's what the public is asking for. It has nothing to do on how they manage the issues, but if something is taken out of cycle the conservation argument shouldn't be used without scientific verification. CHAIRMAN THERRIAULT objected to the amendment and asked whether there were any questions. SENATOR DAVIS asked Representative Scalzi for verification that he did not support the amendment. REPRESENTATIVE SCALZI replied he did not support the amendment. Although the Senate and the House have cut the budget of the board of fish because they were taking too many meetings out of cycle, it didn't change the behavior. This would be a more productive and stabilizing action. CHAIRMAN THERRIAULT asked for a roll call on amendment #1. The amendment failed three to two with Senators Stevens, Davis and Chairman Therriault voting no and Senators Phillips and Halford voting yes. There were no other amendments offered. There was one zero fiscal note. He asked for the will of the committee. SENATOR STEVENS made a motion to pass \P version SCS CSHB 216(STA) from committee with attached fiscal note and individual recommendations. There being no objection, it was so ordered.