HB 257: "An Act transferring duties relating to aquatic farming and hatchery operations from the Department of Fish and Game to the Department of Natural Resources, eliminating certain permit requirements applicable to aquatic farming and hatchery operations, and directing the Department of Natural Resources to administer and supervise promotional and marketing work for aquatic farm products; and providing for an effective date."
00 HOUSE BILL NO. 257 01 "An Act transferring duties relating to aquatic farming and hatchery operations from 02 the Department of Fish and Game to the Department of Natural Resources, eliminating 03 certain permit requirements applicable to aquatic farming and hatchery operations, and 04 directing the Department of Natural Resources to administer and supervise promotional 05 and marketing work for aquatic farm products; and providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 08 to read: 09 SHORT TITLE. This Act may be known as the Alaska Shellfish Mariculture 10 Development and Marketing Act. 11 * Sec. 2. AS 03.05.010(a) is amended to read: 12 (a) The commissioner of natural resources shall 13 (1) direct, administer, and supervise
01 (A) promotional and experimental work, extension services, 02 and agricultural projects for the purpose of promoting and developing the 03 agricultural industry within the state including such fields as horticulture, 04 dairying, cattle raising, fur farming, grain production, vegetable production, 05 and development of other agricultural products; and 06 (B) promotion and marketing of aquatic farm and hatchery 07 products; 08 (2) procure and preserve all information pertaining to the development 09 of the agricultural industry and disseminate that information to the public; 10 (3) assist prospective settlers and others desiring to engage in the 11 agricultural industry in the state with information concerning areas suitable for 12 agriculture and other activities and programs essential to the development of the 13 agricultural industry in the state; 14 (4) review the marketing, financing, and development of agricultural 15 products inside the state including transportation, with special emphasis upon local 16 production, and negotiate for the marketing of agricultural products of the state with 17 federal and state agencies operating in the state; 18 (5) regulate and control the entry into the state and the transportation, 19 sale, or use inside the state of plants, seeds, vegetables, shell eggs, fruits and berries, 20 nursery stock, animal feeds, remedies and mineral supplements, fertilizers, and 21 agricultural chemicals in order to prevent the spread of pests, diseases, or toxic 22 substances injurious to the public interest, and to protect the agricultural industry 23 against fraud, deception, and misrepresentation; in this connection the commissioner 24 may require registration, inspection, and testing, and establish procedures and fees; 25 [AND] 26 (6) regulate the farming of elk in a manner similar to the manner in 27 which the commissioner regulates domestic animals and livestock, to the extent that is 28 appropriate; and 29 (7) administer and supervise aquatic farming and hatchery 30 operations for leases entered into under AS 38.05.083; unless the commissioner 31 determines that assignment to another subordinate unit of the department better
01 furthers the objectives of successful development of aquatic farms and hatcheries 02 and better conforms to the management objectives of the department, 03 responsibility for oversight of aquatic farms and hatcheries is delegated to and 04 generally vests in the director of the division principally responsible for the 05 development and execution of state agricultural policy, except that responsibility 06 for the issuance of leases vests in the director of the division of lands; however the 07 management of the duties and responsibilities set out in this paragraph are 08 allocated, the Department of Natural Resources shall exercise supervisory 09 authority under this paragraph 10 (A) in a manner that 11 (i) ensures the protection of the state's fish and 12 shellfish resources; and 13 (ii) improves the economy, health, and well-being of 14 the citizens of the state; and 15 (B) cooperatively with the Department of Fish and Game so 16 as not to impair the exercise by that department of 17 (i) the duty under AS 16.05.868 to conduct fish 18 health inspections, including particularly its ability as set out in 19 regulations adopted under authority of that section for inspections 20 of fish broodstocks and seed stocks to detect fish disease and to 21 issue certifications that fish broodstocks and seed stocks are free of 22 disease; 23 (ii) the authority exercised under AS 16.05.251(a) 24 relating to the regulation of fish transportation, including 25 particularly its ability as set out in regulations adopted under 26 authority of that subsection with respect to prescribing conditions 27 to control the occurrence of fish disease, genetic change, and other 28 disturbances of biological origin affecting native, wild, or hatchery 29 stocks of fish; and 30 (iii) the authority exercised under AS 16.40.120 - 31 16.40.199 relating to protection of native fish and shellfish stocks
01 and native aquatic plants. 02 * Sec. 3. AS 03.05.030 is amended to read: 03 Sec. 03.05.030. Rules for grading and classification of agricultural and 04 fisheries products. The commissioner may adopt rules, regulations, and procedures 05 (1) requiring the classification, grading, and inspection of agricultural 06 products sold or offered for sale for general consumption before they are sold, and 07 requiring the marking or labeling of any sack, box, carton, or other container of 08 agricultural products to show the kind, grade, or other prescribed classification of the 09 contents; 10 (2) relating to fish or fisheries products for which the 11 commissioner exercises responsibility under AS 03.05.010(a)(1)(B). 12 * Sec. 4. AS 03.05.040 is amended by adding a new subsection to read: 13 (c) In furtherance of the purpose of fulfilling the duty imposed by 14 AS 03.05.010(a)(1)(B), the commissioner of natural resources or an individual 15 designated by the commissioner of natural resources as an inspector may, for the 16 purpose of inspecting fish or fisheries products, or premises containing or having 17 contained fish or fisheries products, enter a storehouse, warehouse, cold storage plant, 18 packing house, slaughterhouse, retail store, or other building or place where fish or 19 fisheries products are or have been raised, housed, kept, stored, processed, or sold. 20 * Sec. 5. AS 03.05.050 is amended by adding a new subsection to read: 21 (c) Fish or fisheries products found, by the commissioner of natural resources, 22 or by an individual designated by the commissioner of natural resources as an 23 inspector, to violate a regulation adopted under this chapter to implement 24 AS 03.05.010(a)(1)(B) are declared to be a public nuisance injurious to the public 25 interest and may not be moved by the person in whose possession they may be except 26 at the specific direction of the commissioner of natural resources or by the inspector. 27 * Sec. 6. AS 03.05.100(4) is amended to read: 28 (4) "fish or fisheries products," 29 (A) for the authority exercisable by the commissioner of 30 natural resources under this chapter to implement AS 03.05.010(a)(1)(B), 31 means
01 (i) an aquatic farm product as that term is defined in 02 AS 16.40.199; and 03 (ii) a product raised at a hatchery, as that term is 04 defined in AS 16.40.199, including stock acquired and used by the 05 hatchery for the purpose of further growth or propagation; 06 (B) except as provided in (A) of this paragraph, means any 07 aquatic animal, including amphibians, or aquatic plants or parts of those plants, 08 animals, or amphibians that are usable as human food. 09 * Sec. 7. AS 03.09.040 is amended by adding a new subsection to read: 10 (c) The board may not adopt regulations or take action regarding the 11 construction or operation of a farm or hatchery for which a lease is issued under 12 AS 38.05.083. 13 * Sec. 8. AS 16.05.251(f) is amended to read: 14 (f) Except as expressly provided in AS 16.40.120(e) and 16.40.130, the Board 15 of Fisheries may not adopt regulations or take action regarding the issuance, denial, or 16 conditioning of a permit under AS 16.40.120 [AS 16.40.100 OR 16.40.120, THE 17 CONSTRUCTION OR OPERATION OF A FARM OR HATCHERY REQUIRED 18 TO HAVE A PERMIT UNDER AS 16.40.100,] or a harvest with a permit issued 19 under AS 16.40.120. 20 * Sec. 9. AS 16.05.930(g) is amended to read: 21 (g) AS 16.05.330 - 16.05.723 do not apply to an activity authorized by a lease 22 entered into under AS 38.05.083 or a permit issued under AS 16.40.120 23 [AS 16.40.100 OR 16.40.120], or to a person or vessel employed in an activity 24 authorized by a permit issued under AS 16.40.120, if appropriate [AS 16.40.100 OR 25 16.40.120]. 26 * Sec. 10. AS 16.10.269 is amended to read: 27 Sec. 16.10.269. Limitations. AS 16.10.265 and 16.10.267 do not apply to the 28 purchase or sale of aquatic farm products from a lessee under AS 38.05.083 29 [HOLDER OF A PERMIT ISSUED UNDER AS 16.40.100] or stock from a lessee 30 under AS 38.05.083 [HOLDER OF A PERMIT ISSUED UNDER AS 16.40.120]. 31 * Sec. 11. AS 16.40.120(a) is amended to read:
01 (a) A person may not acquire aquatic plants or shellfish from wild stock in the 02 state for the purpose of supplying stock to an aquatic farm or hatchery [REQUIRED 03 TO HAVE A PERMIT UNDER AS 16.40.100] unless the person holds an acquisition 04 permit from the commissioner. 05 * Sec. 12. AS 16.40.120(b) is amended to read: 06 (b) An acquisition permit authorizes the permit holder to acquire the species 07 and quantities of wild stock in the state specified in the permit for the purposes of 08 supplying stock to 09 (1) an aquatic farm or hatchery [REQUIRED TO HAVE A PERMIT 10 UNDER AS 16.40.100]; 11 (2) the department. 12 * Sec. 13. AS 16.40.140(a) is amended to read: 13 (a) A private hatchery [REQUIRED TO HAVE A PERMIT UNDER 14 AS 16.40.100] may sell or transfer stock from the hatchery only to an aquatic farm or 15 other hatchery in this state [THAT HAS A PERMIT ISSUED UNDER 16 AS 16.40.100], except that shellfish stock may also be sold or offered for sale to an 17 aquatic farm or related hatchery outside of the state. 18 * Sec. 14. AS 16.40.140(b) is amended to read: 19 (b) Stock may not be transferred to or from an aquatic farm or hatchery 20 [REQUIRED TO HAVE A PERMIT UNDER AS 16.40.100] without prior notice of 21 the transfer to the commissioner. A notice of transfer shall be submitted at least 45 22 days before the proposed date of transfer. 23 * Sec. 15. AS 16.40.140(e) is amended to read: 24 (e) A person may not sell, transfer, or offer to sell or transfer, or knowingly 25 purchase or receive, an aquatic farm product grown or propagated in the state unless 26 the product was grown or propagated on a farm in this state [WITH A PERMIT 27 ISSUED UNDER AS 16.40.100. THE PERMIT MUST BE IN EFFECT AT THE 28 TIME OF THE SALE, TRANSFER, PURCHASE, RECEIPT, OR OFFER]. 29 * Sec. 16. AS 16.40.150(a) is amended to read: 30 (a) The department shall order the quarantine or the destruction and disposal 31 of diseased hatchery stock or of aquatic farm products when necessary to protect wild
01 stock. A lessee under AS 38.05.083 [HOLDER OF A PERMIT ISSUED UNDER 02 AS 16.40.100] shall report to the department an outbreak or incidence of disease 03 among stock or aquatic farm products of the lessee [PERMIT HOLDER] within 48 04 hours after discovering the outbreak or incidence. 05 * Sec. 17. AS 16.40.150(b) is amended to read: 06 (b) A lessee [HOLDER OF A PERMIT ISSUED UNDER AS 16.40.100] shall 07 allow the department to inspect the lessee's [PERMIT HOLDER'S] farm or hatchery 08 during operating hours and upon reasonable notice. The cost of inspection shall be 09 borne by the department. 10 * Sec. 18. AS 16.40.150(d) is amended to read: 11 (d) The department may enter into an agreement with a state or federal agency 12 or a private, state-certified provider to provide services under (b) and (c) of this 13 section [,] or inspections under AS 38.05.083 [AS 16.40.110(b)]. 14 * Sec. 19. AS 16.40.160 is amended to read: 15 Sec. 16.40.160. Regulations. The commissioner may adopt regulations 16 necessary to implement AS 16.40.120 - 16.40.199 [AS 16.40.100 - 16.40.199]. 17 * Sec. 20. AS 16.40.170 is amended to read: 18 Sec. 16.40.170. Penalty. A person who violates a provision of AS 16.40.120 - 19 16.40.199 [AS 16.40.100 - 16.40.199], a regulation adopted under AS 16.40.120 - 20 16.40.199 [AS 16.40.100 - 16.40.199], or a term or condition of a permit issued under 21 AS 16.40.120 - 16.40.199 [AS 16.40.100 - 16.40.199,] is guilty of a class B 22 misdemeanor. 23 * Sec. 21. AS 16.40.199 is amended to read: 24 Sec. 16.40.199. Definitions. In AS 16.40.120 - 16.40.199, [AS 16.40.100 - 25 16.40.199] 26 (1) "aquatic farm" means a facility that grows, farms, or cultivates 27 aquatic farm products in captivity or under positive control; 28 (2) "aquatic farm product" means an aquatic plant or shellfish, or part 29 of an aquatic plant or shellfish, that is propagated, farmed, or cultivated in an aquatic 30 farm and sold or offered for sale; 31 (3) "aquatic plant" means a plant indigenous to state water or that is
01 authorized to be imported into the state under a permit issued by the commissioner; 02 (4) "commissioner" means the commissioner of fish and game; 03 (5) "hatchery" means a facility for the artificial propagation of stock, 04 including rearing of juvenile aquatic plants or shellfish; 05 (6) ["INSIGNIFICANT POPULATION" MEANS A POPULATION 06 OF SHELLFISH THAT, IN THE DETERMINATION OF THE COMMISSIONER, 07 WOULD NOT ATTRACT AND SUPPORT A COMMERCIAL FISHERY FOR 08 THAT SPECIES OF SHELLFISH AND THE HARVEST AND SALE OF THE 09 SHELLFISH WOULD NOT RESULT IN SIGNIFICANT ALTERATION IN 10 TRADITIONAL FISHERIES OR OTHER EXISTING USES OF FISH AND 11 WILDLIFE RESOURCES IF THE POPULATION WERE INCLUDED WITHIN AN 12 AQUATIC FARM SITE; 13 (7)] "positive control" means, for mobile species, enclosed within a 14 natural or artificial escape-proof barrier; for species with limited or no mobility, such 15 as a bivalve or an aquatic plant, "positive control" also includes managed cultivation 16 in unenclosed water; 17 (7) [(8)] "shellfish" means a species of crustacean, mollusk, or other 18 invertebrate, in any stage of its life cycle, that is indigenous to state water or that is 19 authorized to be imported into the state under a permit issued by the commissioner; 20 (8) [(9)] "stock" means live aquatic plants or shellfish acquired, 21 collected, possessed, or intended for use by a hatchery or aquatic farm for the purpose 22 of further growth or propagation. 23 * Sec. 22. AS 16.43.940 is amended to read: 24 Sec. 16.43.940. Exempted activities. This chapter does not apply to activities 25 authorized under a lease entered into under AS 38.05.083 or by a permit issued 26 under AS 16.40.120 [AS 16.40.100 OR 16.40.120]. 27 * Sec. 23. AS 38.05.083(a) is amended to read: 28 (a) The commissioner may offer to the public for lease at public auction under 29 AS 38.05.075 or by negotiation under AS 38.05.070 a site for aquatic farming or 30 related hatchery operations, subject to the following: 31 (1) before a final decision
01 (A) to issue a lease is made under this section, the 02 commissioner shall determine whether the best interests of the state would 03 be served by offering a lease site under this section; in making the 04 determination under this subparagraph, the commissioner shall 05 specifically inquire of the commissioner of fish and game as to whether the 06 proposed lease site includes more than an insignificant population of a 07 wild stock, on the site, of a shellfish species that could be cultured; in 08 making a determination under this subparagraph, the commissioner shall 09 treat as conclusive the decision of the commissioner of fish and game as to 10 whether there is more than an insignificant wild stock population on the 11 proposed lease site of a shellfish species that could be cultured; for 12 purposes of this subparagraph, "insignificant population" means a 13 population of shellfish, that, in the determination of the commissioner of 14 fish and game, would not attract and support a commercial fishery for 15 that species of shellfish, and the harvest and sale of the shellfish would not 16 result in significant alteration in traditional fisheries or other existing uses 17 of fish and wildlife resources if the population were included within an 18 aquatic farm site; 19 (B) [. BEFORE A FINAL DECISION] to issue or renew a 20 lease is made under this section, the commissioner shall 21 (i) give notice and allow opportunity for comment in 22 accordance with AS 38.05.945 and may hold a hearing to take 23 testimony; 24 (ii) [. BEFORE A FINAL DECISION TO ISSUE OR 25 RENEW A LEASE UNDER THIS SECTION, THE 26 COMMISSIONER SHALL] consider all relevant comment or 27 testimony submitted under this section, AS 38.05.945, or 38.05.946; 28 (2) the commissioner may offer and enter into a new lease under 29 this section only if the commissioner 30 (A) obtains from an interested party a plan for the 31 development and operation of the aquatic farm or hatchery; under this
01 subparagraph, if, after consulting with the Department of Fish and Game, 02 the commissioner finds it reasonable to do so, the commissioner may 03 require a report of the fish and shellfish disease history of the site; 04 (B) based on the information provided under (A) of this 05 paragraph, determines that 06 (i) the physical and biological characteristics of the 07 proposed aquatic farm or hatchery location is suitable for aquatic 08 farming or for shellfish or aquatic plant activity; 09 (ii) the proposed aquatic farm or hatchery does not 10 require significant alterations in traditional fisheries or other 11 existing uses of fish and wildlife resources; 12 (iii) the proposed aquatic farm or hatchery does not 13 significantly affect fisheries, wildlife, or their habitats in an adverse 14 manner; and 15 (iv) the proposed aquatic farm or hatchery plans 16 and staffing plans demonstrate technical and operational 17 feasibility; and 18 (C) considers all matters relevant under (f) of this 19 subsection to a final decision; 20 (3) the commissioner may renew a lease under this section only if 21 the application for renewal of the lease is accompanied by 22 (A) evidence satisfactory to the commissioner that the 23 applicant has complied with the plan described in (2)(A) of this subsection 24 during the term of the expiring lease; and 25 (B) a report of the disease history of the aquatic farm or 26 hatchery covered by the permit; as a condition of renewal, the 27 commissioner may require a health inspection of the aquatic farm or 28 hatchery and may direct the department to conduct the inspection or 29 contract with a disease diagnostician to conduct the inspection. 30 * Sec. 24. AS 38.05.083(f) is amended to read: 31 (f) The commissioner shall adopt regulations
01 (1) setting out procedures under which the commissioner shall 02 determine whether the best interests of the state would be served by offering a 03 lease site under this section; and 04 (2) establishing criteria for the approval or denial of leases under this 05 section; under this paragraph, the commissioner may limit [AND FOR 06 LIMITING] the number of sites for which leases may be issued in an area in order to 07 protect the environment and natural resources of the area; in addition, the criteria [. 08 THE REGULATIONS] must provide for the consideration of upland management 09 policies and whether the proposed use of a site is compatible with the traditional and 10 existing uses of the area in which the site is located. 11 * Sec. 25. AS 38.05.083 is amended by adding new subsections to read: 12 (g) If, under this section, the lessee cultures wild stocks of shellfish indigenous 13 to the site, 14 (1) the commissioner shall require the lessee to document the number 15 or volume of the wild stocks of shellfish taken from the site for the lessee's use in the 16 operation; and 17 (2) when the lease is terminated or expires, the lessee shall restore the 18 wild stocks of shellfish, but the obligation to restore the wild stocks may not exceed 19 restoration of the number actually used in the operation on the site or location for 20 which the lease was entered into, as documented under (1) of this subsection. 21 (h) The provisions of AS 03.05.010(a)(7) apply to leases issued under this 22 section. 23 * Sec. 26. AS 44.37.020(a) is amended to read: 24 (a) The Department of Natural Resources shall administer the state program 25 for the conservation and development of natural resources, including forests, parks, 26 and recreational areas, land, water, agriculture, soil conservation; [, AND] minerals, 27 including petroleum and natural gas; and aquatic farms and hatcheries. The 28 department's authority under this subsection does not include administration of 29 [, BUT EXCLUDING] commercial fisheries, sport fish, game, and fur-bearing 30 animals in their natural state. 31 * Sec. 27. AS 16.05.050(a)(16), 16.05.340(a)(14); AS 16.40.100, 16.40.105, and 16.40.110
01 are repealed. 02 * Sec. 28. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 TRANSITIONAL PROVISIONS REGARDING WRITTEN BEST INTEREST 05 FINDING PROCESS. Until amended by the commissioner of natural resources, regulations 06 applicable to making determinations as to whether the best interest of the state would be 07 served by offering a lease site under AS 38.05.083 that have been developed and adopted by 08 the Department of Natural Resources and codified as 11 AAC 63 comply with the 09 requirements of AS 38.05.083(a)(1)(A) and (f)(1), as enacted by this Act. 10 * Sec. 29. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 TRANSITIONAL PROVISIONS. (a) Litigation, hearings, investigations, and other 13 proceedings pending under a law repealed or amended by this Act, or in connection with a 14 function transferred by this Act, continue in effect and may be completed notwithstanding a 15 transfer or repeal provided for in this Act. 16 (b) Certificates, orders, and regulations in effect immediately before the effective date 17 of a law affected by this Act that were issued or adopted under authority of a law amended or 18 repealed by this Act remain in effect for the term issued and shall be enforced by the 19 Department of Natural Resources under this Act until revoked, vacated, or amended by that 20 department. 21 (c) Wherever in Alaska Statutes affected by this Act there is a reference to regulations 22 adopted under a section of law and there are no regulations adopted under that section because 23 previous regulations adopted under another section are being enforced under (b) of this 24 section, the reference shall be construed to refer to the previously adopted regulations until 25 they are amended by the Department of Natural Resources. 26 (d) Contracts, rights, liabilities, and obligations created by or under a law repealed or 27 amended by this Act, and in effect on the day before the effective date of the repeal or 28 amendment, remain in effect notwithstanding this Act's taking effect. 29 (e) Records, equipment, appropriations, and other property of the Department of Fish 30 and Game whose functions are transferred under this Act shall be transferred to implement the 31 provisions of this Act.
01 * Sec. 30. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 ALASKA GROWN LOGO APPLICABLE TO AQUATIC FARM PRODUCTS. 04 Under AS 03.05.010 - 03.05.100, to implement AS 03.05.010(a)(1)(B), enacted by sec. 2 of 05 this Act, the Department of Natural Resources shall extend its proposed program regulations 06 (11 AAC 32.200 - 11 AAC 32.270 or as may be renumbered) establishing and authorizing the 07 use of the "Alaska Grown" logo to the production of aquatic farms and hatcheries. 08 * Sec. 31. This Act takes effect October 1, 2007.