Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/16/2015 01:30 PM LABOR & COMMERCE
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HB 41-SPORT FISHING SERVICES 5:39:15 PM CHAIR COSTELLO announced the consideration of HB 41. "An Act relating to sport fishing services, sport fishing operators, and sport fishing guides; and providing for an effective date." She noted this is the second hearing for the bill and public testimony is open. 5:41:20 PM CRYSTAL KOENEMAN, Staff, Representative Cathy Munoz, summarized that HB 41 is to reestablish the sport fish guide licensing program that sunsetted December 31, 2014. The only change is that the fees are doubled. SENATOR STEVENS noted a constituent is concerned about the overly severe penalty of having his license revoked for two paperwork violations. He asked where that is found in the bill and how she would address that issue. MS. KOENEMAN directed attention to the penalty section on page 5 that speaks to a person who knowingly violates a provision of the sport fish statutes. A person is guilty of a violation for a first offense. If there is a second or subsequent offense in a three year period the person is guilty of a class B misdemeanor. The constituent takes issue with the use of the word "knowingly" and instead suggested using the term "intentionally." She discussed the matter with both the Alaska Department of Fish and Game (ADF&G) and legislative legal and learned that the burden of proof for "intentionally" is substantially higher than for "knowingly" and would be very difficult to prove. The number of violations each year is extremely small and ADF&G has a provision whereby it can work with a guide and issue a letter of agreement to accommodate a special circumstance. For these reasons the sponsors do not support the proposed amendment. 5:46:58 PM SENATOR STEVENS said he understands the difficulty with the higher burden of proof, but his constituent has no reasonable way to get the logbook report to ADF&G in a timely manner when he is on a two week big game hunt and his client does incidental fishing. MS. KOENEMAN said if there isn't a drop box near by the person can mail the report. If the report is postmarked by the deadline she believes that would be sufficient. SENATOR STEVENS asked where you'd get an envelope postmarked in the middle of a bear hunting trip. MS. KOENEMAN said that's where that letter of agreement with ADF&G come into play. "When they know they're going to be out in the field and can't make those deadlines they can work with fish and game to determine a time in which those logbooks can be delivered when they fly back in from the remote areas and are near a post office. Whether it's a couple of months out, it's all between the guides themselves and fish and game to come up with that agreement," she said. SENATOR STEVENS expressed concern with the vagueness of the solution and questioned the timeline. MS. KOENEMAN deferred to ADF&G to outline how the letters of agreement are drafted. SENATOR GIESSEL asked to hear from Mr. Mulligan. 5:50:02 PM BEN MULLIGAN, legislative liaison, Alaska Department of Fish and Game (ADF&G), said he understands Senator Steven's concern about the potential solution being vague, but the department does take a case-by-case approach when it works with people who are unable to get their reports in on time. ADF&G tries to be understanding and the statute and regulations allows this latitude. It says that the guide must follow the instructions in the logbook and the instructions given by the department. The department has approved special arrangements for a few guides in the last couple of years and none that received the approval have had a violation. He suggested that Mr. Brookover might have supplemental information. SENATOR STEVENS asked what the penalty is for someone who has two paperwork violations. MR. MULLIGAN replied it's a class B misdemeanor for a second or multiple violations within a three-year period. He noted that given the culpability standard of "knowingly," ADF&G only issues about a dozen citations a year. The priority is to receive this valuable data, not issue citations. 5:53:20 PM SENATOR GIESSEL read Sec. 16.40.291(c)(1) on page 5 and observed that there doesn't appear to be a penalty for a first offense. She asked if that's true. MR. MULLIGAN replied it is a bailable offense; the person would receive a citation and fine. SENATOR GIESSEL read Sec. 16.40.291(c)(2) on page 5 and asked if that was the class B misdemeanor he referenced. MR. MULLIGAN answered yes. CHAIR COSTELLO asked Mr. Brookover if he had anything to add to the discussion. 5:54:16 PM TOM BROOKOVER, Acting Director, Division of Sport Fish, Alaska Department of Fish and Game (ADF&G), reiterated the value of the data that's collected through the logbook program. He explained that the purpose of the program is to provide information on business and guide effort in the state. The program provides valuable information and to fulfill its purpose there must be compliance. ADF&G seeks that compliance by working with the guides as much as possible. The program was developed over a number of years and included meetings with charter associations and in communities so the department could better understand the needs and limitations of guides and businesses. The department works with the industry both in season and out to help with compliance. When logbooks come in with missing information or other problems come up during the season, staff reaches out to businesses and guides to highlight and discuss the issues. MR. BROOKOVER said there have been very few offenses in the last two years, which is reflective of the compliance the department has achieved over the years. They work with remote operators on a case-by-case basis to find a solution to the timeliness requirement. This is preferable to turning the matter over to protection. 5:58:53 PM SENATOR STEVENS referenced Sec. 16.40.291(d) that says the court may revoke the sport fishing guide license if the person is convicted under (a) or (c)(2) of the section, and commented that the penalties seem rather draconian. He reiterated the concern his constituent raised about the penalties because "knowingly violates" could simply mean you don't get your logbook in on time. He asked, "What is a bear trip? A month long, three weeks? You know better than I." MR. MULLIGAN admitted he didn't know, but the average was probably two weeks. MS. KOENEMAN pointed out that in subsection (a), AS 16.40.261 - 16.40.300 references the licensing provision, not an untimely logbook. MR. MULLIGAN agreed. 6:01:40 PM SENATOR STEVENS asked Mr. Mulligan if he can understand his constituent's concern. He has spent his lifetime building a successful guiding business and has never committed a crime. Now ADF&G says it could allow a grace period if he doesn't submit his logbooks in a timely manner. MR. MULLIGAN said he can understand the concern added, "All we can do is go off our track record with the program so far and Mr. Brookover's testimony." He said ADF&G would like to work with this particular guide and figure out a plan. Both the logbook coordinator and the law enforcement specialist have contacted him to work with him and try to ease his mind. 6:03:53 PM SENATOR STEVENS asked if he could see a way to write that into the bill. MR. MULLIGAN replied the standard of proof for "knowingly" is a fairly high bar. If this constituent has turned a logbook in late he hasn't been cited. The purpose of the program is to collect data to better manage the resource. SENATOR STEVENS said he understands the meaning of the term, but the concern is that this person is at a remote site where there is no post office and no planes coming and going. CHAIR COSTELLO asked Mr. Bullard if he was available to talk about the specific issue on page 5, line 22 and the difference between "knowingly" and "intentionally." 6:05:46 PM ALPHEUS BULLARD, Legislative Counsel, Legislative Legal Services, Legislative Affairs Agency, Alaska State Legislature stated that he did not want to talk in large form about the issue, but would answer specific questions about the different standards. CHAIR COSTELLO asked the difference between "knowingly" and "intentionally." MR. BULLARD explained that the four mental states for crimes in Alaska are intentionally, knowingly, recklessly and criminal negligence. He read the definitions for the first two terms provided in AS 11.81.900(a). CHAIR COSTELLO opined that the key phrase is on page 5, line 23. It talks about timely submission of reports and the department would provide through regulation what is and is not timely. She said it seems that the department could take this testimony into consideration when someone is unable to submit their report per the requirements. SENATOR STEVENS said he realizes the importance of the data, but he doesn't understand the harm it could do if it comes in a week later than required. He asked why it couldn't be submitted at the end of the hunt. MR. MULLIGAN explained that the time was negotiated, primarily with sport fishing guides. The majority in that industry did not see the week timeframe as egregious. 6:11:21 PM MR. BROOKOVER reported that about 1,200 businesses in the state operate under the logbook program and many return to port every day. As mentioned earlier, the week timeframe was the result of discussions over several years and it seems to work. However, there are a few remote operators and the department wants to work with them and accommodate their circumstances to the extent possible. 6:14:16 PM PAUL JOHNSON, Guide, testified in opposition to HB 41. He explained that this is strict liability law and it isn't just the State Troopers that enforce this; it is also the National Park Service, the U.S. Fish and Wildlife, the U.S. Coast Guard, and NOAA. The penalty for a violation is more than simply paying the fee. He related his personal experiences and stressed that the program was sunsetted for a purpose. He suggested the legislature put together a working group to deal with all the associated issues or sunset the program after one or two years. He questioned why electronic filing isn't possible because the federal government has figured it out. [Much of this testimony was indiscernible.] 6:22:24 PM CHAIR COSTELLO closed public testimony. SENATOR STEVENS commented that the testimony was interesting and he made good points. He said his concerns have not been allayed and he feels more study and more input is needed. 6:23:22 PM At ease 6:23:28 PM CHAIR COSTELLO reconvened the meeting and stated that the discussion was about Senator Steven's concerns about the legislation. She said the committee will include a letter from Senator Stevens that will be forwarded to the Finance Committee. The department has also heard the concerns. 6:24:10 PM SENATOR GIESSEL motioned to report HB 41, labeled 29-LS0238\P.A, from committee with individual recommendations and attached fiscal note. CHAIR COSTELLO announced that without objection, CSHB 41(FIN) AM is reported from the Senate Labor and Commerce Standing Committee.