HB 285 - POINT SYSTEM FOR COMMERCIAL FISH VIOLATION Number 0025 CHAIRMAN GREEN announced the first item of business would be HB 285, "An Act relating to suspension or revocation of commercial fishing permits and privileges." Number 0105 REPRESENTATIVE IVAN IVAN, sponsor, paraphrased the sponsor statement for CSHB 285(RES), explaining that the bill was introduced to address concerns about illegal fishing activities committed by commercial fishers in his own district and in other commercial fishing communities throughout the state. He indicated that when fishers are convicted for such activities, some consider it a cost of doing business. REPRESENTATIVE IVAN informed members that the intent of this legislation is to establish a point system against a commercial fishing permit holder for a conviction of commercial fishing laws found under Title 16. Should 12 or more points be assessed against a permit holder during any consecutive 36-month period as a result of convictions, the Commercial Fisheries Entry Commission (CFEC) is given the authority to suspend the permit for a one-year period. A suspension of two years occurs when 16 or more points are accumulated during a consecutive 48-month period. A suspension of three years is invoked when a permit holder accumulates 18 or more points during any consecutive 60-month period. Two points will be deducted from the total points assessed against a permit if the permit holder is not convicted of a violation of commercial fishing laws during a 12-month period after the date of the last conviction. Representative Ivan noted that the bill outlines the assessment of points, the suspension process, the notice and appeal process, and the notification to the CFEC by the court system. REPRESENTATIVE IVAN explained that another provision in CSHB 285(RES) affects emergency transfers of a permit. Should the permit holder decide to transfer the permit, any points accumulated by the person in possession of a permit will also be assessed against the person to whom it is transferred. This provision will discourage permit transfers by a permit holder who has accumulated a large number of points and is trying to avoid suspension by transferring the permit to another fisher. Number 0324 REPRESENTATIVE IVAN indicated that although they had originally targeted against permits, they had decided to target the permit holders because of concerns by lending institutions such as the Commercial Fisheries and Agricultural Bank (CFAB). REPRESENTATIVE IVAN pointed out that while many fishers operate lawfully, others take advantage of the high income, breaking a few laws and then paying off the violations. This bill discourages such behavior and levels the playing field for honest commercial fishermen. Representative Ivan added, "And there were some concerns by commercial fishermen, but we've addressed those and compromised in order to ... preserve the permit system." REPRESENTATIVE IVAN noted that there had been input by CFAB, by the CFEC, and by Department of Public Safety personnel who enforce fishing violations; he believes most of their concerns had been addressed. He advised members that Bruce Twomley of the CFEC and Tom Wright, his own staff member, could respond to questions. Number 0439 REPRESENTATIVE CON BUNDE commented that he hopes this will solve the problem at Egegik, where people who get away with a violation once can "make a payday." He referred to page 2, which lists violations. He asked whether those are all the violations possible or just the most egregious ones. Number 0487 TOM WRIGHT, Legislative Assistant to Representative Ivan Ivan, Alaska State Legislature, answered that they are the most egregious, and they fit under the Title 16 violations. He explained, "There might be some very minor violations that might not be included in here, but those are so minor in nature that it was decided not to do any point assessment. We could go on and have a three- or four-page list of points, with all the Title 16 violations. ... We had two work sessions on this bill of about three hours each, and this was decided that these were the most egregious." Number 0530 REPRESENTATIVE BRIAN PORTER noted that the sponsor statement says the CFEC is given the authority to suspend the permit. As he reads the bill, however, it seems to be mandatory. He asked whether the intent is that it be mandatory. REPRESENTATIVE IVAN said yes. Number 0571 REPRESENTATIVE ETHAN BERKOWITZ referred to the list on page 2 and said he doesn't see points for fish that are undersized or of the wrong gender, for example. MR. WRIGHT suggested perhaps Colonel Glass could address that. Number 0624 JOHN GLASS, Colonel, Director, Division of Fish and Wildlife Protection, Department of Public Safety, answered via teleconference from Anchorage that these are mostly commercial fishing violations. He agreed with Mr. Wright that they are the most egregious ones; through all the work sessions, these were highlighted by Colonel Glass's staff and by members of the committee that worked on this bill as the ones that really needed to be addressed. Colonel Glass also agreed that some smaller ones will probably get through. He pointed out that just as not every violation generates points against a driver's license, they anticipate the same with this bill. COLONEL GLASS advised members that the Fish and Wildlife Protection Division supports this bill in its entirety. He stated, "Representative Ivan we applaud for doing this. This has come at the request of the commercial fishermen in Bristol Bay, primarily, but almost all the groups that I've spoken with fully support this bill." CHAIRMAN GREEN asked whether that answered Representative Berkowitz' question about gender or size. Number 0698 REPRESENTATIVE BERKOWITZ said it did. He pointed out that his experience has been that those kinds of violations occur with crab. He asked whether they could find some way of including those, noting that in his experience those violations have occurred fairly frequently, particularly regarding undersized crab. He then asked how many people would lose their licenses under this scheme. Number 0739 COLONEL GLASS replied, "That's unknown. We do in some cases have multiple violations on a regular basis, most especially last year, I believe it was, when they did an in-river fishery; there were people that were violating and possibly accumulating points, two or three violations a day for fishing in closed waters. Now, if they're a violation, they're only going to get half the number of points, so it would take probably six. The exact number I don't have a hard number on." He suggested perhaps Bruce Twomley from the CFEC could address that. He restated that there are multiple violators out there, whom this will affect. Number 0790 CHAIRMAN GREEN followed up on Representative Berkowitz' question about gender and size violations for crab fishing, saying it seems that could certainly be as important as fishing with an improperly marked vessel. COLONEL GLASS replied, "You're right, and it's one that we just overlooked." Number 0813 REPRESENTATIVE NORMAN ROKEBERG asked if all commercial fishers in Alaska hold permits or if they just have commercial fishing licenses. He asked about the distinctions between those. Number 0863 BRUCE C. TWOMLEY, Chairman, Commercial Fisheries Entry Commission (CFEC), responded, "Anyone who is an operator of gear, anyone who is a captain responsible for a unit of gear, has to has a license issued by us. It's a limited entry permit or an interim use permit, as opposed to crew licenses that are administered by the Department of Fish and Game. So the captains would be swept in. The people who have a stake ... in a limited entry permit or an interim use permit would be swept in, in this legislation." Number 0908 REPRESENTATIVE ROKEBERG asked, "There's no such animal as a commercial fishing license, there are these two types of permits, which, if you are engaged in commercial fishing, you have to have one or the other?" MR. TWOMLEY said that is correct; they need one or the other. REPRESENTATIVE ROKEBERG asked whether "permit holder" is the appropriate term of art here. MR. TWOMLEY replied, "For our purposes, yes. ... This covers the permits we issue, we administer." Number 0939 REPRESENTATIVE BUNDE said, "On that point, somebody with a commercial fishing license can go to work for any permit holder if the permit holder will hire them. The permit holder, ... however, can't just go fishing without the permit. So, the person with the most to lose here is the permit holder." REPRESENTATIVE BUNDE noted that fishing in closed waters or during a closed season is a major violation. He observed, deferring to Representative Ivan's judgment, that wanton waste is equally as serious but is penalized at a lower level than the other two. He asked why wanton waste is at a lower level of penalty. Number 1003 MR. WRIGHT explained that it was debated and there was a policy decision, made within the working group, to make it a four-point violation. While everyone had seemed to like it, they are not adamant about four points by any means. Number 1035 REPRESENTATIVE BUNDE asked whether bycatch is considered wanton waste. MR. WRIGHT said he'd guess that under some scenarios it would be wanton waste, but under other scenarios, no. He said he really couldn't answer, stating his assumption that Representative Bunde was talking about the trawl industry. REPRESENTATIVE BUNDE affirmed that. He suggested that most commercial fishermen won't be involved in wanton waste because they want to sell the product. He said he could see two scenarios. First, someone might leave nets in the water and ignore them, with the fish subsequently rotting. The second scenario would involve bycatch. He added, "I've never heard anyone charged in a case of bycatch with wanton waste, but they're certainly throwing away the product." Number 1085 MR. WRIGHT suggested Colonel Glass would be the best person to answer that. He said he would imagine the wanton waste on a trawler would occur when they go beyond their allotted bycatch limit. Number 1114 COLONEL GLASS stated that he had nothing to add, except that most of the trawlers are covered under the federal auspices and are closely monitored by those people, too. Number 1134 REPRESENTATIVE PORTER asked whether setnet sites are covered under this as well. MR. WRIGHT said yes. Number 1168 REPRESENTATIVE BERKOWITZ stated his understanding that these violations are all strict-liability violations. BRUCE TWOMLEY explained that two levels of violations are addressed in the bill: strict-liability violations and misdemeanors. He said he believes the points set out cover the misdemeanor level, and a following section assigns half of those points for the strict-liability violations. Number 1168 REPRESENTATIVE BERKOWITZ replied, "But there are some strict- liability misdemeanors, if I recall, too, which is an abnormality within the law. But the point I wanted to make was, for example, you get fishing in closed waters, an over-the-line-type offense. There's two types. There's the aggressive going over the line deliberately, and there's the engine failure or drifting over the line problem. And is there any way of distinguishing between those two cases, in terms of point assessment?" MR. TWOMLEY said he believes that kind of distinction takes place all the time in the field, when the enforcers actually charge someone. He suggested perhaps Colonel Glass could address that. Number 1212 COLONEL GLASS said that is correct. Most strict violations, as such, are dealt with that way. However, for the most serious and egregious violations, such as fishing way over the line, those people start out at a misdemeanor level. They also deal on a regular basis with situations where there is a net in the wheel, for example; those circumstances are mitigators, handled in the field at the time of the violation, for the most part. Number 1250 REPRESENTATIVE BUNDE asked, "Colonel Glass, am I to assume that, like in many other cases, there is prosecutorial discretion? And this, of course, is only after the person has been charged and convicted of these violations that this would come into play." COLONEL GLASS said that is correct. Although the bill originally indicated it was from the date of violation, now it is upon the date of conviction that the points are assessed. Number 1284 CHAIRMAN GREEN stated his understanding that it is not uncommon for someone to be cited for one or more of these violations, and that the offender can plead to a lesser offense. He asked what they normally plead down to, for going over the line, for example. COLONEL GLASS replied that normally, if a person is charged with fishing in closed waters, it is a violation; most of the people plead to that, as opposed to a misdemeanor. As Representative Ivan has indicated, a standard rate of penalty is applied. He cited an example of a $3,000 penalty with $1,000 suspended, so that there is a $2,000 fine that is considered a cost of doing business in Bristol Bay. CHAIRMAN GREEN asked how that pleading would affect this point system. COLONEL GLASS answered, "As long as it's a violation, it would still be half of the six points. So, each pleading would still be three points, instead of the six." Number 1364 CHAIRMAN GREEN posed a situation where a person has a one-year suspension, gets a two-point reduction, and then the next day receives a six-point violation. He asked whether the new violation would offset the previous day's two-point bonus. MR. WRIGHT explained that the two-point reduction would take place. The points are not assessed until the date of conviction. If that person were convicted, the new points would then be assessed. Number 1436 REPRESENTATIVE ROKEBERG asked Colonel Glass whether this would be a good tool and in what way it would enhance the enforcement of laws in Alaska. Number 1481 COLONEL GLASS said he believes this will greatly enhance his division's enforcement abilities. He restated that in Bristol Bay, people feel that going across the line and doing these type of violations is just the cost of doing business. Colonel Glass explained, "Now, when I say that, that's not my words. This is the 400-plus commercial fishermen in Bristol Bay region alone that I have spoken to personally in regards to this issue. They think that it's excellent." COLONEL GLASS recounted that the previous week, he wrote a letter in response to an individual who had seven violations in the last five years; that individual had tried to explain to Colonel Glass that he was not a chronic offender. Colonel Glass said those are the types of people that make it difficult for the honest, law- abiding fishermen, which probably 98 percent of them are. "In fact, we're trying to make it more on a level playing field for those people, and we feel that this bill will do just exactly that," he concluded, adding that this was brought forth by the fishermen, who themselves want it. Number 1547 CHAIRMAN GREEN asked whether this help in enforcement would be because of the fear of loss of the permit, or whether there was a plan to have additional staff to patrol. COLONEL GLASS stated the belief that the specter of losing one's permit, and the resulting large loss of income, will be a deterrent to a potential violator. He said his agency will not be doing any more enforcement than they already do, because they are "maxed out" in that regard. Number 1599 MR. WRIGHT advised members that as a permit holder and a commercial fishermen himself, he knows that if he got a ticket for six points, he would be very careful about where he put the net again and how he played the line. He said Cook Inlet is becoming that same type of fishery, as are other fisheries throughout the state. Number 1637 REPRESENTATIVE JEANNETTE JAMES said this revisits an issue from a previous year, when they considered increasing the fines on these types of violations. She asked whether anyone recalled the fate of that legislation. MR. WRIGHT replied that he remembered a bill from a few years ago, sponsored by Senator Halford, that increased commercial fishing fines. Mr. Wright pointed out that there is much latitude from court to court, which is where they run into a problem. REPRESENTATIVE JAMES said she recalled that now. She then commented that she likes the idea of the point system. She said when people just paid a fine for a speeding ticket, it was no big deal, but the points assessed against the driver's license made a big difference. Number 1726 REPRESENTATIVE BUNDE advised members that he is somewhat familiar with the Egegik fishery. If someone goes over the line even 20 feet and can stay there 10 minutes, they make many thousands of dollars, putting the people who stay just behind the line at a great disadvantage, because the fish are so narrowly focused they can literally cut off the incoming stream. Number 1762 CHAIRMAN GREEN asked whether this might be almost self-policing, as it would be to honest fishermen's advantage to take the boat number of an offender. MR. WRIGHT agreed that in some aspects, this may be self-enforcing. When people receive notices of points being assessed after a conviction, fishermen will become more careful, regardless of whether there is enforcement in the area. Number 1789 REPRESENTATIVE BERKOWITZ pointed out that Alaska has fewer "fish cops" than the state of Rhode Island does. He stated his understanding that Colonel Glass has 80 or 85 officers working for him, covering the entire state, which Representative Berkowitz said is a huge problem. "And anything we can do to magnify their force, something like this, is something we ought to think about doing," he concluded. Number 1817 REPRESENTATIVE ROKEBERG asked whether the judiciary looks at points as a further penalty and whether that had affected the level of fines relating to driving offenses. He then asked whether anyone had any ideas about that. CHAIRMAN GREEN said, "Representative Porter?" REPRESENTATIVE PORTER responded, "No." Number 1856 REPRESENTATIVE ROKEBERG referred to Section 7, which he said relates to revocation of a permit that has been pledged as security for a loan. He noted that there are many citations to statutes there. He then referred to Section 11, which he said refers to an entry permit pledged as collateral for a loan. He asked what the effects of these sections are. He further asked what occurs in this instance. Number 1889 MR. TWOMLEY replied, "The effect of those two provisions is to ensure that if the permit itself is security to one of the two state-authorized loan programs for a loan, that the security is not lost. The individual may lose the privilege, but the security is still maintained for the benefit of the two agencies." Number 1905 REPRESENTATIVE ROKEBERG asked whether it is possible that a commercial bank or another institution other than the state programs would have a security interest in the permit. MR. TWOMLEY replied, "That's not the case. There's only two state- authorized loan programs that can take a security interest in an entry permit. Otherwise, the permit has been characterized by the legislature as a privilege, one that the legislature can modify at will." REPRESENTATIVE ROKEBERG suggested that only the Internal Revenue Service (IRS) could have a claim against it, and not any other commercial financial institution, for purposes of collateralization. MR. TWOMLEY said that is correct. Number 1939 REPRESENTATIVE ROKEBERG referred to Section 11 and asked about existing law relating to a buy-back provision. MR. TWOMLEY answered that it is existing law, and the function of this section is to roll in the termination of the debtor's interest under this new legislation into the existing provision. REPRESENTATIVE ROKEBERG commented that it is a new subsection under Section 10. He asked whether the only debtor's interest that would be created would be with one of the two state-owned institutions. He asked whether there could be any other kind of debtor or interest in that permit. MR. TWOMLEY replied, "Not a private debtor, but arguably Child Support [Enforcement Division] and the Internal Revenue Service could have a claim." REPRESENTATIVE ROKEBERG said these permits are not used as security interests for any other kind of indebtedness, and they are restricted by state statute in that regard. He asked whether it is a correct assumption that they are not going to be interrupting any commerce here, or creditors' rights and relationships, by passing this statute. MR. TWOMLEY said that is correct. Number 2005 CHAIRMAN GREEN asked about the process for buying a permit that comes back to the CFEC, and whether someone could buy it from the commission for the unpaid balance under the buy-back program. MR. TWOMLEY replied, "The mechanics of it are that the lending program gets to dispose of the permit. But if there's a buy-back program in place, they have to make an offer to the commission first, assuming we had funds to administer a buy-back program. They'd have to make the offer to us before they offered the permit to the public." He noted that it is a buy-back by the commission. REPRESENTATIVE ROKEBERG likened it to taking in stock; they are buying it back to diminish the number of permits available. Number 2051 MR. WRIGHT pointed out that someone under suspension would be out of that fishery for a year's period, except for the possibility of being a crew member. CHAIRMAN GREEN asked, "Now, if you didn't have the funds to buy it, could a third party then buy it for the unpaid balance?" [Mr. Twomley nodded.] Number 2077 REPRESENTATIVE BERKOWITZ referred to a provision on page 4, line 23, which allows for bail forfeiture essentially to count as conviction for purposes of assessing points. He asked whether anyone had looked into due process or other constitutional provisions that might allow that. Number 2103 MR. WRIGHT said he couldn't respond to that, and that it was a subsection inserted by the drafter. Number 2136 DEAN PADDOCK came forward to testify on his own behalf, stating that he lives in Juneau and fishes commercially in Bristol Bay. He specified that he was speaking to identify with and hopefully validate the sponsor's statements, and he also identifies with the statements of the Representative from North Pole. He told members this has long been requested by the legal fishing community. "The rest, I guess, are going to have to look out for themselves," he added. MR. PADDOCK suggested that one major problem remains for the fishermen, and, to some degree, for Public Safety. Particularly in Bristol Bay, the boundaries of these fishing lines are identified largely by Loran C lines. Therefore, there is a question of where the line is at the moment that a violation is alleged to have occurred. "And that, of course, is the problem which this bill attempts to solve," he added. MR. PADDOCK stated, "I do hope that Public Safety, the Division of Commercial Fisheries, the Board of Fisheries and the fishing public will continue to attempt to address this issue. I believe this bill will be effective largely through its ability to scare the heck out of everybody, including the legal fishermen." He referred to the "law of unintended consequences," noting that he is not an attorney. He suggested that is what Representative Berkowitz' question probably addressed. Mr. Paddock concluded by saying in spite of this "hopefully minor concern," this bill has his support. He urged the committee to go ahead on it full-steam. Number 2315 REPRESENTATIVE BERKOWITZ said he'd had the pleasure of going to Bristol Bay and fishing with Mr. Paddock during the summer. CHAIRMAN GREEN informed members, "We've had some input from attorneys along the side line, and figure that it's unusual but legal." Number 2329 MR. WRIGHT indicated he had consulted with Commissioner Otte and George Utermohle, the drafter of the bill, and this is based on the guidelines in the forfeiture statutes of the CFEC. It is designed so that someone charged with a violation, if it is serious enough, can go in, post bail, post collateral, go back out and keep fishing, and come back after the fishing season and take care of that. Number 2356 REPRESENTATIVE PORTER said the analogy between this and driver's license points is obvious. He stated, "And the question of double jeopardy has been litigated in the area of driver's license points, whether a court can fine and then an administrative suspension is a violation of double jeopardy. It is very well established by the courts that it is not, and I'm sure that the same ruling would be given in this case." Number 2382 CHAIRMAN GREEN asked what the sponsor's desire is, in response to concern that this doesn't cover size or gender violations, especially relating to crab. He also mentioned the issue of bycatch. Number 2389 REPRESENTATIVE IVAN responded that he doesn't have any problem with the recommendation by Representative Berkowitz. He said they could handle it either in the current committee or on the floor, whichever is the committee's desire. REPRESENTATIVE JAMES and REPRESENTATIVE BERKOWITZ both suggested doing a conceptual amendment in this committee. Number 2404 REPRESENTATIVE BUNDE announced he would like to remove his concern about bycatch, saying that he believes wanton waste and bycatch are two different things. "My only concern was wanton waste should have been, in my mind, higher, but it's not a reason to hold the bill," he added. Number 2408 REPRESENTATIVE ROKEBERG noted that there had been an omission and policy calls. He suggested that the committee briefly look at what violations of fishing laws and fines there are, to see whether there is anything else they want to add or subtract. He also said he didn't want to hold the bill any longer than needed. CHAIRMAN GREEN acknowledged that admitted oversight but expressed concern about holding it up to go back over policy. REPRESENTATIVE JAMES said it seems there is a difference between the crab issue and this fishing issue. TAPE 98-24, SIDE B Number 0006 REPRESENTATIVE JAMES continued, saying it seems that the list in this bill specifically apply to that Bristol Bay fishing area. She said she would be comfortable passing the bill along as it is, but she would also be comfortable, if the sponsor had no problem with it, adding those two issues to the list, as a conceptual amendment. She said she didn't want to hold the bill up. Number 0022 COLONEL GLASS pointed out that when his officers go through a crab vessel, they go by percentage of females and percentage of undersized crab. If there were amendments relating to the crab fishery, his division would have to get those percentages to plug in. "And I don't recall right off the top of my head, but it seems to me that it has to be more than, like, 5 percent undersized before we would take any action in any case," he stated, adding that the most egregious ones, which would be well over that percentage, are "hammered pretty good." REPRESENTATIVE JAMES said it doesn't seem to fit the purpose of this bill. CHAIRMAN GREEN asked Representative Berkowitz, who had originally raised the point, what he thinks about it. REPRESENTATIVE BERKOWITZ said he doesn't know much about fishing or crabbing. However, his experience prosecuting and doing defense work was that the undersized crab problem is pervasive. He said that if they are trying to discourage behavior, the crabbers need discouragement just as much as anyone else. He noted that they are not picking up people for one undersized or one female crab; that certainly doesn't rise to the level of anyone's attention. But if people are misbehaving enough, they ought to feel the pinch. CHAIRMAN GREEN responded that he certainly understands what Colonel Glass is saying. However, this wouldn't get into the percentages if they just made another line entry, "size or gender violation, so many points." COLONEL GLASS said that would be fine with him. CHAIRMAN GREEN asked how many points that should be. Number 0106 REPRESENTATIVE PORTER said, "Not trying to be negative, but now I'm uncomfortable. I don't feel that this is the committee is the one to discuss the ramifications of crabbing and crab violations and the degree of violations as it equates to the degree of points. That is a Resources Committee function. The legality of this seems clear. It is intended, I think, to address one area of resource management, and that isn't crabbery. If Resource folks want to do that, then they should get a bill to do that. But I'm uncomfortable doing it here at the table." Number 0140 REPRESENTATIVE BERKOWITZ offered to make a conceptual amendment, to resolve it. He referred to the House Resources Standing Committee, which had been heavily occupied with the subsistence issue lately, and he noted that multiple committee referrals exist so that new ideas can be generated as a bill moves through the process. He also pointed out that some or all of these restrictions apply to crab as well as to fin fisheries; he said he saw no particular problem with having something specific to crabbing. He concluded, "That's a law enforcement question, not so much a resource question, which it would seem to me properly within our purview." CHAIRMAN GREEN asked whether Representative Berkowitz was making an amendment. Number 0172 REPRESENTATIVE BERKOWITZ replied, "Conceptual amendment, to include the crabbing violations: undersize, gender." CHAIRMAN GREEN asked whether he had a point system. REPRESENTATIVE BERKOWITZ replied that he couldn't say what the points were going to be. Number 0188 MR. WRIGHT offered to work with Representative Berkowitz or his staff, or with the Department of Public Safety, to try to come up with the proper point assessment. He said it is a good idea. Number 0209 REPRESENTATIVE IVAN said he felt it was drifting into an area with which he isn't totally familiar. He would try to accommodate the amendment but could make no assurances that they would arrive at that. Representative Ivan emphasized that he didn't want to endanger the bill, which is very much needed in the Bristol Bay area for line enforcement purposes. Number 0237 REPRESENTATIVE BERKOWITZ withdrew his conceptual amendment, saying he would discuss with Representative Ivan possibly doing something when this goes to the floor. MR. WRIGHT pointed out that salmon fishermen helped to put this together. Number 0252 REPRESENTATIVE PORTER made a motion to move from committee CSHB 285(RES), with individual recommendations and attached fiscal notes. CHAIRMAN GREEN asked whether there was any objection. There being none, CSHB 285(RES) moved from the House Judiciary Standing Committee.