Legislature(2001 - 2002)
02/20/2001 02:50 PM House ARR
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT COMMITTEE ON
ADMINISTRATIVE REGULATION REVIEW
February 20, 2001
2:50 p.m.
HOUSE MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Jeannette James
Representative Joe Hayes
HOUSE MEMBERS ABSENT
All House members present
SENATE MEMBERS PRESENT
Senator Robin Taylor, Vice Chair
Senator Lyda Green
Senator Georgianna Lincoln
SENATE MEMBERS ABSENT
All Senate members present
COMMITTEE CALENDAR
Review of Past Regulations
Review of Current Proposed Regulations
Regulatory & Jurisdictional concerns/State v Federal Governments
Proposed Regulation Review Bill
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
JIM POUND, Staff
to Representative McGuire
Alaska State Legislature
Capitol Building, Room 116
Juneau, Alaska 99801
POSITION STATEMENT: Provided the committee with a review of
past and proposed regulations.
RON SOMERVILLE, Resource Consultant
House & Senate Majority
Alaska State Legislature
(No address provided.)
POSITION STATEMENT: Discussed dual management.
ACTION NARRATIVE
TAPE 01-4, SIDE A
Number 001
CHAIR LESIL McGUIRE called the Joint Committee on Administrative
Regulation Review to order at 2:50 p.m. Representatives
McGuire, James, and Hayes and Senator Lincoln were present at
the call to order. Senators Taylor and Green arrived as the
meeting was in progress.
Review of Current Proposed Regulations
Number 0027
JIM POUND, Staff to Representative McGuire, Alaska State
Legislature, began by reviewing a document entitled "Regulations
for Review or Comment," which is included in the committee
packet. He reviewed regulation changes for the Board of
Physical Therapy, the Board of Dental Examiners, the Board of
Barbers, the Board of Nursing, and the Board of Public
Accountancy, and the State Board of Education.
SENATOR GREEN turned to the regulation changes mentioned for the
State Board of Education and related her understanding that
there is a waiver of fees for a particular certification.
MR. POUND explained that the fees will be waived for teachers to
become certified in areas where there are limited supplies of
teachers.
SENATOR GREEN inquired as to who is making up the difference
when there is a claim, file, or lawsuit.
MR. POUND reiterated that this waiver is for certification fees,
which he believes goes into the general fund.
SENATOR GREEN asked if any other fees are being waived in the
state for any other licenses.
MR. POUND replied, "Not under current regulations."
CHAIR McGUIRE agreed to take that up further per Senator Green's
interest in doing so.
Number 0109
REPRESENTATIVE JAMES asked whether the list Mr. Pound is
reviewing is a list of regulations that are in the process.
MR. POUND replied yes.
CHAIR McGUIRE pointed out that the committee still has time to
make a public comment on any of these regulations.
SENATOR LINCOLN expressed the hope that in further discussions
on the waiver for teacher certification the committee would be
informed the cost of certification and the number of [teachers]
that [would be able to utilize the waiver].
Number 0150
REPRESENTATIVE JAMES noted that the committee can still address
those regulations that are finalized and legislation can be
drafted to fix problems. Representative James inquired as to
the status of [regulations] relating to rural airports.
MR. POUND related his understanding that there will be some
changes regarding the confusion over the fees at each individual
airport for various things. He understood that those
regulations were going back out to public hearing.
Number 0174
MR. POUND returned to the regulations for review or comment and
noted that he had been reviewing Education & Early Development,
supplemental notice 4 AAC 52, which deals with the incorporation
of federal special education requirements in the state
regulations.
SENATOR GREEN asked if this dealt with the funding issue, that
is the federal funding being used for children with
disabilities.
MR. POUND answered that there is no reference to a fiscal note
in the regulations. However, he suspected that there are
federal dollars available as a result of these [federal
requirements] being incorporated into the state's regulations.
SENATOR GREEN informed the committee that there is legislation
dealing with removing references to education of gifted children
and separating that from [the education of] children with
disabilities because of the federal prohibition on federal
dollars being used for gifted education, which isn't a federal
requirement. Senator Green expressed the desire to avoid
duplication.
MR. POUND said that he would have to review the legislation. He
then continued with the regulation that would add an additional
student, an alternate, to the Alaska State Board of Education.
Number 0219
MR. POUND moved on to the review of regulations for the
Department of Environmental Conservation, which involve air
quality. These regulations may be of concern for some because a
business that is located in an area away from the population
isn't problematic even if it has lot of extra pollution. The
perception may be that some companies are getting away with
things that other companies are not because of the company's
location.
REPRESENTATIVE JAMES asked if that was a statutory requirement
or did the regulators "dream that up."
MR. POUND answered that the reference to it was statutory.
However, it looked as if these air quality [regulations] came
from the department after a long process with the stakeholders.
REPRESENTATIVE JAMES announced that she would review those.
MR. POUND moved on to the review of regulations for the Alaska
Department of Fish & Game relating to the Board of Fish and the
Board of Game. He concluded by reviewing the regulations
available for review and comment with the notifications relating
to the Alaska Housing Finance Corporation.
Number 0255
CHAIR McGUIRE directed attention to the already adopted
regulations regarding Katchemak Bay/Fox Bay On-Bottom
Mariculture.
MR. POUND related his understanding that regulations regarding
Katchemak Bay are under legal review. He informed the committee
that Katchemak Bay, a critical habitat area, has been closed to
all bottom shellfish farming and thus there are some concerns
with how that biological decision was made. The way the
regulations are written, there are questions regarding what can
be done in a critical habitat area. Per the current
regulations, it appears that Katchemak Bay will be off limits to
about everyone because the regulations appear to go beyond the
critical habitat statute.
CHAIR McGUIRE announced her intention to hold a committee
meeting on these regulations that have yet to be enacted. She
pointed out that members should have a memorandum from her dated
February 16, 2001, regarding prior meetings regarding the Board
of Pharmacy and the mariculture issue.
Regulatory & Jurisdictional concerns/State v Federal Governments
Number 0308
RON SOMERVILLE, Resource Consultant, House & Senate Majority,
Alaska State Legislature, informed the committee that the House
and Senate Resources Committees requested that he evaluate how
the dual management system is working from the standpoint of the
legislature. That review was presented at a February 14, 2001,
Resources Committee meeting. Mr. Somerville noted that he had
interviewed stakeholders as well as staff from the state and
federal agencies. Many of the subsistence users are very
pleased with the federal system.
MR. SOMERVILLE pointed out that there are distinct differences
between the state and federal systems in regard to the
regulations for fish and game. The federal agencies, as
authorized under the Alaska National Interest Lands Conservation
Act (ANILCA), has a different mandate and does not have the
conservation mandates as structured by the state constitution.
Primarily, the federal agencies emphasize providing healthy
populations as well as the maintenance of federal uses on
federal public lands. He noted that the definition of federal
public lands is a matter of much litigation. Then there is the
state system, which involves all fish and wildlife as well as
all lands, save those where the federal government may exercise
their jurisdiction as authorized by Congress. From that the
dual management system came into being and has been in place for
wildlife for some time. Mr. Somerville explained that the state
is structured such that there is the Board of Fish and the Board
of Game as well as about 80 advisory committees to make
recommendations to the boards.
MR. SOMERVILLE recalled U.S. Senator Murkowski's meetings with
U.S. Secretary Babbitt who seemed to say that the federal
government would cooperate as best it could with the state,
understanding that the federal mandate is outlined in ANILCA.
The notion of minimal intrusion into the existing fish and
wildlife management program for the state was emphasized by U.S.
Secretary Babbitt. Therefore, the question as to whether that
resulted, he left for each individual to decide.
MR. SOMERVILLE then began to chronicle the history of dual
management, beginning with a memorandum from Commissioner Frank
Rue, Alaska Department of Fish & Game (ADF&G), on November 26,
1997, regarding how state staff would cooperate with the federal
government. Subsequently, there was an interim memorandum of
understanding (MOU) developed between federal agencies and [the
Alaska Department] of Fish and Game over the coordination of
fish and wildlife management for subsistence uses on federal
public lands. This MOU specifies how subsequent protocols will
be established for commercial fisheries on the Yukon, sharing
data, avoiding overlap, and the development of in-season, post-
season, and pre-season management programs. At a point, the
advisory committees dropped out, which he felt [was problematic]
because they were the crux of the state's regulatory structure.
Then the Yukon River Drainage, which is an example of the type
of protocol one can expect from the federal/state agencies, was
developed. Mr. Somerville reviewed the protocol of the Yukon
River Drainage and pointed out that the state provides the
things specified while virtually nothing is reciprocated by the
federal government.
MR. SOMERVILLE continued by asking how the master MOU is
working. He turned to ADF&G's frustration in 1998, which is
evidenced [in documentation from Elizabeth Andrew, who chaired a
Subsistence Policy Advisory group for the commissioner of
ADF&G]. The aforementioned document says that over time federal
management will create two classes of rural users. Furthermore,
it was noted that no progress had been made in terms of
departmental involvement at federal regional council meetings.
In the actual regulation process, the state is ignored by the
federal agencies and the regional advisory councils.
Number 0440
SENATOR LINCOLN inquired as to the document that Mr. Somerville
referred to when stating that the state has to share information
with the federal government, but the reverse is not the case.
MR. SOMERVILLE said that he was reading from the Subsistence
Management, Information Sharing Protocol draft, which was never
signed. In further response to Senator Lincoln, Mr. Somerville
pointed out that the master MOU was signed as was the Yukon
River Protocol, [both of which mention information sharing].
SENATOR LINCOLN asked if the master MOU has any references
requiring the federal government to share information with the
state.
MR. SOMERVILLE indicated that the master MOU references the
federal government sharing information with the state. In
further response to Senator Lincoln, Mr. Somerville remarked
that it is clear the state is providing all the information that
it can to the regional advisory committees as well as to the
federal agencies. However, the reciprocal portion isn't being
done, which can be partially attributed to the fact that the
overriding process is different. Staff participate in regional
advisory committees, but their recommendations are virtually
ignored and thus they are frustrated.
SENATOR LINCOLN expressed the need to have facts to support Mr.
Somerville's assertion that there is a one-way flow of
information.
MR. SOMERVILLE pointed out that the only responsibility of the
regional [advisory] councils is to make recommendations to the
Federal Subsistence Board who makes its recommendations to the
federal agencies. "However, the requirements law are that they
will be given deference. In other words, there has to be
substantial information to show that the Federal Subsistence
Board made an error or didn't adequately consider something for
a ... customary and traditional finding before they can reject
it," he explained.
Number 0479
SENATOR LINCOLN inquired as to why, with the agreement, the
[state] thought it would be reciprocal.
MR. SOMERVILLE answered that he can only assume that the state
felt that these were legitimate complaints that could've been
dealt with and would've minimized the intrusion had some of the
state's recommendations been accepted. However, [the federal
government] isn't required to do so.
MR. SOMERVILLE agreed with Senator Lincoln that the requirement
isn't there, but the assumption is that [the state's
recommendations would be considered]. He noted that in some
cases, the argument could be made that the federal agencies
would have the prerogative of involving the state more in their
pre-season planning process. That reciprocal exchange is
implied in the MOU.
MR. SOMERVILLE read the following points of Elizabeth Andrews:
Problem 1: The federal process does not provide a
procedure to determine the amount of harvest necessary
to meet rural subsistence needs.
Problem 2: Federal regulations do not recognize the
state's identification of fish and wildlife
populations or harvestable surplus.
Problem 3: There exists no federal infrastructure,
resource assessment program on which to base in-season
fishery management season.
MR. SOMERVILLE informed the committee of problems with the
board; these were problems noted by staff who attended the Board
of Fish meeting. During the meeting, it was difficult to
determine whether the comments of federal staff were their
personal, agency, or federal perspective. For example, a former
ADF&G biologist who now works for the National Parks Service
also represented a local Fish & Game advisory committee at one
meeting. Furthermore, since federal staff positions and
proposals aren't provided in advance to ADF&G staff, it was
difficult for the department to respond to federal comments.
Moreover, there was no mechanism for a meaningful exchange with
the state prior to the comments provided at the board meeting.
He then mentioned a Retreat Summary.
MR. SOMERVILLE addressed the impact [of dual management], which
has been utilized for over nine years with wildlife. Staff has
reported that cooperation has been minimal. For example, the
federal regulations differ phenomenally from state regulations.
[At the time,] the "fish and wildlife" people asked that the
state's regulations not be published in total but rather only
those state regulations that are contrary to those adopted by
the Federal Subsistence Board. However, the state's regulations
were published in total and then those regulations were modified
as [the Federal Subsistence Board] saw fit. The problem with
that is that the federal regulatory process isn't as fast as the
state's regulatory process. Furthermore, there were cases in
which corrections were intended to be made, but were not.
Therefore, the resident, whether a subsistence user or not, is
placed at risk because [the resident] isn't sure which
regulations [to] abide by. Mr. Somerville felt that point to be
important because he predicted that the same course will follow
for fish regulations. However, he did note that once
regulations are adopted the state or anyone can request
reconsideration of a regulation, which is a fairly formal
process. Up to 1997 there have been about 133 or so requests
for reconsiderations, of which only five requested changes have
been satisfactorily resolved. One of the requests took six
years to resolve. There were no requests for reconsiderations
from 1998-2000. Therefore, the question is why. After review
of the department's records, it was found that there were 53
complaints of which 36 seemed to be viable and should have been
submitted to the federal board. Yet, the department must have
felt it a waste of time to submit them.
MR. SOMERVILLE returned to the impact [of dual management] and
pointed to the request of reconsideration of the federal board's
decision to list the Kenai Peninsula as rural. He informed the
committee that the Cooper Landing Fish & Game Advisory Committee
has submitted a request for reconsideration, but the state has
not. He mentioned a letter from Commissioner Rue, which noted
support of the request of reconsideration.
Number 0577
SENATOR TAYLOR recalled that the change in classification of the
Kenai Peninsula from urban to rural occurred about two years ago
and no one, on behalf of the state, has requested
reconsideration.
MR. SOMERVILLE clarified that the Cooper Landing request for
reconsideration was filed and the state supports that. However,
the state didn't request reconsideration. The problem with such
is that the state can make certain claims that others cannot.
Therefore, there would be an advantage, technically, to the
state requesting reconsideration.
CHAIR McGUIRE related her understanding that the state's support
for that request for reconsideration hasn't been in a formal
manner.
MR. SOMERVILLE reiterated that there is a letter, a letter to
the chair of the Federal Subsistence Board, in support of this
request for reconsideration by the Cooper Landing Advisory
Committee.
TAPE 01-4, SIDE B
MR. SOMERVILLE continued. He explained that since the federal
rules were adopted and the dual management system began, there
were many complaints. He cited letters from Representative Gail
Phillips in 1995, the legislature, and the United Fishermen of
Alaska. [The United Fishermen of Alaska] pointed out a number
of areas in which there was a lack of jurisdiction. There was
also a March 28, 1996, letter from the governor regarding
adopted regulations that involve state waters and selected but
unconveyed lands. The governor's letter also points out the
clear violation of advanced notice and the proposed rule making
as established in the Federalism Effect of Executive Order
12612. Then, on June 1, 1996, the attorney general wrote to the
Federal Subsistence Board in objection to the final adoption,
which included a key objection to the lack of an environmental
impact statement. Mr. Somerville pointed out that other than
the Katie John case there has been no litigation by the state,
despite the aforementioned complaints.
Number 0572
MR. SOMERVILLE related his belief and agreement with
Commissioner Rue that the state is picking and choosing its
litigation battles. Although the state probably doesn't have
the money to litigate all 40 of those individual problems, there
are some that Mr. Somerville would argue to be a major
oversight. He said that federal regulations claim authority to
set regulations in in-land waters. However, the federal in-land
waters definition isn't consistent with anything in state law or
other federal law and thus violates the state's interpretation
of ANILCA. In conclusion, Mr. Somerville remarked that whether
there is litigation or not, "it" costs a lot of money.
REPRESENTATIVE JAMES related her understanding that the federal
government's mission, when taking over subsistence, was to
manage for subsistence rather than for the sustainable resource,
which is the state's mission.
MR. SOMERVILLE agreed with that understanding.
Number 0550
REPRESENTATIVE JAMES remarked that she saw no problem with the
federal management of game because it is easy to see where
federal land is. However, with fish it is difficult to
determine where federal waters are. Representative James
expressed her concern that managing the fish specifically for
subsistence versus "sustainable balance" would result in a good
opportunity for the fish to decline over time. Therefore, she
has always expressed her desire to ensure that there enough
people measuring the resource and tending to the science in
order to determine whether the management was causing a decline.
She asked if that is occurring.
MR. SOMERVILLE replied yes. He informed the committee that the
federal government received over $18 million to deal with dual
management and some of that is being given to ADF&G in order to
extend the department's monitoring programs. However, there is
a provision in ANILCA that would allow up to $5 million to the
state on a 50:50 match. Since ANILCA has passed, the most
funding received in one year was close to $1 million, most of
which went to the subsistence division in order to perform
people assessment issues rather than resource assessment.
Therefore, he said that the current monitoring efforts are good,
although he was sure the state would argue that it's not enough
to do what is expected. He noted the large amount of manpower
and costs that go into this system with frequent overlap of
jurisdiction.
REPRESENTATIVE JAMES remarked, "I don't buy this dual management
stuff. Let them manage what they manage and we manage what we
manage." However, she acknowledged that there may be
duplication. Representative James felt that if the money were
spent to monitor the resource, it would show a decline when
managed for subsistence only without any management for the
sustained resource. With the evidence of a difference
[decline], there is the option to change it.
MR. SOMERVILLE said, "I don't have a magic wand, though, as to
how you're going to do that." Currently, the federal government
makes a decision and the state has to pick up the slack.
Number 0509
SENATOR LINCOLN related her belief that she and Mr. Somerville
don't differ on the notion of having the state manage its own
resource. However, with all the information provided, Senator
Lincoln pondered what [the state] expected. The federal
government was given the ability to come in and manage Alaska's
fisheries under their regulations and thus Senator Lincoln said
that she wasn't surprised [with the outcome]. However, she
predicted that this is the tip of what the federal government
will do in managing Alaska's fisheries.
SENATOR LINCOLN noted her agreement that to go back now and
unravel the adopted regulations would be extremely costly. She
didn't hear the legislature saying that it was willing to put
more money into this. "There's not much happening in the way of
a resolve," she said. She noted her [solution] of a vote of the
people for a rural preference and then move to get state
management back.
Number 0483
SENATOR LINCOLN asked Mr. Somerville how he thought Alaska would
fare with a Republican-led administration and House of
Representatives, and an equally divided Senate. Furthermore,
she inquired as to how Mr. Somerville is proposing a resolution
at the state level.
MR. SOMERVILLE noted that he has worked hard on the subsistence
issue. Personally, Mr. Somerville wasn't sure that the current
presidential and congressional makeup would accomplish the
relief desired. He agreed with Senator Lincoln that this dual
management was predictable. Furthermore, the case can be made
that even with a constitutional amendment, there would still be
some form of dual management. However, the current situation
isn't very good for the resource and thus he questioned whether
it is good for the user either.
SENATOR LINCOLN reiterated her earlier question regarding Mr.
Somerville's recommendation, as Staff to the Majority, to
resolve this situation.
MR. SOMERVILLE noted that he hasn't been asked to provide a
specific solution. However, if asked, he said that he would
recommend the legislature taking an active role in trying to
force the federal agencies to reciprocate. Furthermore, he
emphasized his belief that the federal government should pay for
what it gets from the state. Mr. Somerville said, "This issue
will be resolved when the legislature and the Native community
can come to some sort of agreement as where we going."
Number 0422
REPRESENTATIVE JAMES related her understanding that if "we"
managed for subsistence, the regional subsistence councils would
still be around.
MR. SOMERVILLE agreed that the federal agencies are required to
create a regional advisory council system, while the state is
not required to do so.
REPRESENTATIVE JAMES expressed her concern with the health of
the resource, that is the scientific review of the resource in
order to identify with sufficient evidence to determine whether
the resource is being managed such that it is being destroyed.
Representative James commented that she didn't see anything on
the horizon that would solve this problem. Furthermore, even if
a constitutional amendment for a rural subsistence priority is
passed, the system would be similar to what the federal
government currently has.
MR. SOMERVILLE agreed. He then returned to Senator Lincoln's
comments and remarked that the Katie John case has polarized the
situation. However, assuming that the state wins that case, the
state's jurisdiction could be outlined and thus he felt that
there would be the opportunity for policymakers to craft
workable changes. Mr. Somerville felt that the Native community
will be able to see if the bulk of their subsistence is
fisheries, the bulk of which would lie in state navigable
waters. However, "we" haven't solved the problem when fish move
into federal waters, which could result in over utilization that
could jeopardize the status of the stock and/or the downstream
user.
Number 0384
SENATOR TAYLOR expressed his disappointment in learning that the
administration has failed to object on those regulatory changes.
Then he turned to an earlier comment that federal, state, and
Native land is easy to distinguish, which he refuted with the
complicated deer situation in Prince of Wales Island. The "dual
management" is causing problems. He said that for the federal
government to impose regulations on selected and tentatively
approved lands that have not yet been transferred after a survey
is specious because that is privately owned land that falls
under the state's jurisdiction. Therefore, he felt that there
is a patchwork quilt of land identification problems like that
all over the state.
SENATOR TAYLOR recalled the suggestion that "we" gave the
federal government the authority. To that, he informed the
committee that the federal government passed this law in 1980
without consulting the state. There was also the suggestion
that now that President George Bush is in office, things may be
different. However, Senator Taylor pointed out that President
Bush has to enforce the same law as ex-President Bill Clinton.
SENATOR TAYLOR addressed the question of what the Majority is
doing. He pointed out that the Majority is supporting the
Glacier Bay case and the Katie John appeal. He predicted that
the state will win both cases. Senator Taylor noted his
agreement with Mr. Somerville that no one will come to the table
until a federal district court judge or our U.S. supreme court
rules that Congress was wrong in passing this law and it doesn't
apply in the state's waters. Furthermore, Senator Taylor agreed
with Representative James in that Alaska's resources are being
damaged and will continue to be as long as there is federal
management.
Proposed Regulation Review Bill
Number 0285
CHAIR McGUIRE thanked Mr. Somerville for the update. She
announced that the draft legislation in the committee packet is
working through a few potential constitutional hurdles. She
informed the committee that she has been hearing that the
regulatory system isn't working and thus her goal is to pass
legislation to involve the public more with the laws. She also
announced that she will be introducing another piece of
legislation. She concluded by relating her belief that there
should be a system in place that holds everyone a bit more
accountable.
ADJOURNMENT
There being no further business before the committee, the Joint
Committee on Administrative Regulation Review meeting was
adjourned at 4:12 p.m.
| Document Name | Date/Time | Subjects |
|---|