Legislature(1999 - 2000)
04/22/1999 03:06 PM Senate ARR
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* first hearing in first committee of referral
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+ teleconferenced
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JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW
April 22, 1999
3:06 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Representative Jeanette James, Vice-chair
Senator Georgianna Lincoln
Representative John Harris
Senator Pete Kelly
MEMBERS ABSENT
Representative Mary Kapsner
COMMITTEE CALENDAR
Proposed Airport Regulations
WITNESS REGISTER
Mr. Kurt Parkan, Deputy Commissioner
Department of Transportation and Public Facilities
3132 Channel Dr.
Juneau, AK 99801-7898
POSITION STATEMENT: Presented proposed regulations
Mr. Steve Pavish, Leasing Officer
Department of Transportation and Public Facilities
2525 Aviation Blvd.
Anchorage, AK 99519
POSITION STATEMENT: Presented proposed regulations
Mr. John Steiner, Assistant Attorney General
Department of Law
1031 W. 4th Ave. Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Commented on proposed regulations
Ms. Kim Ross, Executive Director
Alaska Air Carriers' Association
929 E. 81st #108
Anchorage, AK 99518
POSITION STATEMENT: Offered testimony on proposed regulations
Mr. Felix Maguire
Alaska Airmen's Association
1515 E 13th Ave.
Anchorage, AK
POSITION STATEMENT: Commented on proposed regulations
Mr. Kip Knutson
ERA Aviation
6160 Carl Brady Dr.
Anchorage, AK
POSITION STATEMENT: Commented on proposed regulations
ACTION NARRATIVE
TAPE 99-04, SIDE A
Number 001
VICE-CHAIR JEANETTE JAMES called the Joint Committee on
Administrative Regulation Review meeting to order at 3:06 p.m. to
consider proposed airport regulations by the Department of
Transportation and Public Facilities (DOTPF).
MR. KURT PARKAN, Deputy Commissioner of the Department of
Transportation and Public Facilities, informed committee members
that Steve Pavish was available via teleconference to give a
general overview of the information he provided at the last
meeting. DEPUTY COMMISSIONER PARKAN noted that Commissioner
Perkins decided to extend the comment period on airport regulations
an additional 90 days due to the comments it has received so far.
He noted DOTPF wants the focus of the comments to be the
regulations, not the length of the comment period.
VICE-CHAIR JAMES noted legislators' appreciation of the extension.
STEVE PAVISH, leasing officer at DOTPF, explained the packet
distributed at the previous meeting is a collection of summary
materials. The first item is an amplified list of the project
objectives presented by Commissioner Perkins to legislators in
March. Those project objectives include: the replacement of
obsolete regulations with new ones; the adoption of regulations
necessary to implement Federal Aviation Administration (FAA)
requirements; the adoption of regulations to comply with AS
02.15.090(c)-(e), also known as HB 543; and addressing numerous
airport parking problems at both the international and rural
airports. Section 2 of the packet contains project history
information, beginning with the first public presentation given in
June of 1994. Public hearings were held in July of 1995; drafts
and proposals are included. Section 3 contains statistical
information from the first comment period, such as the number of
notices published. Prior to the March, 1999 proposal, there had
been 250 days of public comment period. That material is not
included.
MR. PAVISH continued his explanation of the packet materials.
Section 4 pertains to obsolete regulations and ambiguities in
existing regulations. Existing regulations are silent on the
topic of leasing and environmental issues; that silence, in regard
to procedures and policy statements, has created many problems.
Section 5 contains an eight-page comparison of existing and
proposed regulations. The most problematic current regulations
are either silent, obscure, incomplete, or in conflict with
recently passed legislation. Section 6 is DOTPF's response to
comments suggesting that DOTPF take a "bite-size" approach so that
regulations can be adopted progressively. DOTPF believes that
approach would be too confusing because many of the regulations are
interrelated so that changes to one could impact others
inadvertently.
MR. PAVISH said Section 6 contains DOTPF's reasons for not
submitting this set of regulations to the negotiated regulation-
making process (NRP) under AS 44.62.720. The NRP is advantageous
when applied at the beginning of an agency's consideration of
regulations, and, in particular, to regulations about a discrete
subject. When the proposed regulations relate to a discrete
subject, it is easy to identify the impacted parties to organize a
committee to review the regulations. However, DOTPF's proposed
regulations are being developed with a comprehensive, wholesale
approach, covering every aspect of airport operations. It is
extremely difficult to form committees that can cover the field.
DOTPF considered splitting the regulations up into five or six
segments and establishing separate committees to address each one,
but that approach would require 30 to 35 people to serve on those
committees. Again, the regulations before each committee would
overlap with other committees and cause confusion.
MR. PAVISH explained Section 7 contains examples of DOTPF's
response to public comments on past proposals. The example of the
regulation regarding fuel storage tanks shows the three stages of
revisions made to the draft regulations. The original regulations
were silent regarding temporary and mobile storage tanks. The
first proposal allowed aircraft operators to store fuel in barrels
at an airport where fuel was not available from a fixed, or mobile,
tank. That proposal was restricted to an aircraft operator at
airports where those conditions apply. After further comments were
received from people who felt the proposal was too restrictive, the
March 10 draft was changed to specifically allow the use of mobile
fuel tanks as long as the tanks do not leak. In addition, users,
other than aircraft operators, can store fuel with permission of
the airport manager.
MR. PAVISH concluded by saying it is important to keep in mind that
airports are complex facilities used by people and businesses with
many conflicting interests; accommodating the conflicting interests
in a safe and successful manner requires rules. He noted the
linking program contemplated in the proposed regulations for the
state and community airport leasing program is the most liberal in
the nation. The regulations provide more detail, part of which is
at airport operator discretion, more so than is typical at public
airports. He pointed out the airport regulation program is not
perfect, but he looks forward to improving it.
Number 347
CHAIRMAN TAYLOR joined the meeting.
VICE-CHAIR JAMES asked Mr. Pavish if he could offer any comments,
in hindsight, on what he could have done differently to make this
process smoother.
MR. PAVISH replied the statutory structure in 1994 made the process
a bit difficult, but to have more interaction in the beginning, as
contemplated by the NRM process, would have been helpful. Much of
the interaction over the years has been frustrating for people on
both sides of the proposal, but the series of public proposals,
comments, and redrafting has been a useful exercise to arrive at a
consensus on the regulations. The draft regulations have undergone
some dramatic changes. Had people from the industry provided input
at the inception stage, they would have known why DOTPF was making
its proposal and the comments could have focussed on achieving the
objectives.
VICE-CHAIR JAMES suggested that DOTPF consider what people are
doing at a specific time of year before scheduling the public
comment period.
MR. PAVISH noted DOTPF ran a proposal during every season of the
year during this process, and found that while one group of airport
users is busier in the spring, most users are busy every season of
the year.
Number 390
SENATOR LINCOLN thanked those involved for extending the comment
period. She noted that people have said that public comments
submitted in the past were not taken into consideration. She hopes
that with the extension, all public comments are contained in the
record and remain valid so that people do not have to testify again
but have the opportunity if they so choose.
DEPUTY COMMISSIONER PARKAN said he will discuss with the Department
of Law whether the comments from the previous period can be
included in this comment period.
SENATOR LINCOLN said that is a "big ticket" item she wants to leave
on the table because she does not want people to have to testify
and go through the entire process again.
DEPUTY COMMISSIONER PARKAN said the Department of Law is concerned
about using the previous comments during this comment period but
they will discuss the issue.
Number 428
SENATOR LINCOLN asked Chairman Taylor if he could request, on
behalf of the committee, that the comments made in that narrow
window extend into the new three month period.
DEPUTY COMMISSIONER PARKAN clarified that the comments from the
past 40 days would be included.
CHAIRMAN TAYLOR asked Senator Lincoln if she wanted comments made
before that period included. He noted there may be a legal
notification problem.
Number 444
SENATOR LINCOLN said she was not addressing the comments made prior
to the 40 day period. She noted that DOTPF's response to the
inclusion of the earlier comments was that so much time had lapsed
and the proposal contained major changes, so many of the comments
no longer applied.
DEPUTY COMMISSIONER PARKAN said he understood Senator Lincoln's
concern.
SENATOR LINCOLN stated her second concern is in regard to the fact
that the number of hearings and workshops in rural areas listed in
the history highlights is very limited. She noted that hearings
were held in 1994 in Anchorage, Bethel, Dillingham, Fairbanks,
Homer, Kotzebue, Nome, Juneau, and Sitka, but subsequent hearings
were primarily held in urban areas. She maintained that problems
differ among rural airports because of varying climates and
terrain. She asked how many airport regions have been designated
by DOTPF.
DEPUTY COMMISSIONER PARKAN said three.
SENATOR LINCOLN said she cannot stress strongly enough the need for
representation from the rural element. She questioned whether
DOTPF has only accepted written testimony, and asked that it accept
oral testimony.
DEPUTY COMMISSIONER PARKAN said DOTPF is talking about that right
now, and that it will provide opportunities for people to submit
testimony in all forms. He has asked staff to look at ways of
taking oral testimony it has not considered in the past, possibly
by providing a toll free phone number with a voice mail recording
system so that a person could comment from anywhere.
SENATOR LINCOLN noted she finds it unacceptable that DOTPF has
designated 139 rural airports but public hearings and/or workshops
were held in only six of those communities. She asked Mr. Parkan
to discuss the administrative order about using plain English, and
whether DOTPF could possibly draft regulations using both a
comprehensive and "bite-size" process.
Number 501
DEPUTY COMMISSIONER PARKAN said it is difficult to break the
regulations into segments because they are so interrelated, and the
time period that would be required to get through them would be
even greater.
SENATOR LINCOLN recommended that both be done.
CHAIRMAN TAYLOR said that Alaska has 261 airports, and that DOTPF
is trying to draft regulations that encompass aircraft movement
including 747 cargo planes from the Orient to Cessna 150s landing
on gravel strips. He cautioned that trying to structure one set of
regulations that all can live by, and to do so using the regulatory
process, does not work. He noted that DOTPF has employees
throughout the state. He suggested sending the draft regulations
to those personnel and having them sit down with the local people
to explain the regulations and take comments. He maintained that
process would save everyone a lot of time and would provide for
more input from people who work and use rural airports.
Number 554
DEPUTY COMMISSIONER PARKAN thought John Steiner was available to
speak to the possibility of Senator Taylor's suggestion. He noted
DOTPF attempted to provide two sets of regulations instead of one;
one set dealt with the regulations that pertain to international
airports.
CHAIRMAN TAYLOR noted he shares Senator Lincoln's concerns about
rural airports. The Sitka and Ketchikan airports are fully rural
in character, however they do have to be geared up for one jet per
day. He expressed hope that the airports be classed into several
categories with regulations for each. He repeated that employees
and people who live in the rural areas know what is needed in those
areas. He asked Mr. Steiner if there is a problem with DOTPF using
the scenario he outlined.
Number 576
JOHN STEINER, Department of Law, said he did not see a problem with
the classifications based on legitimate differences between the
airports, however that might be more complex because it might
require more regulations to apply to each. He indicated the
suggestion about holding meetings for public comments at the
various airports is problematic in that the Administrative
Procedures Act requires public notices to state the date, time, and
place of the public hearing. Everyone would have to be noticed of
each public hearing. The existing statute does not give DOTPF the
flexibility to set a time for a hearing at each airport and notify
the people in that area. Also, some employees at the airports
might be knowledgeable about airport maintenance but unable to
understand and explain all aspects of the regulations to the
public.
TAPE 99-04
SIDE B
CHAIRMAN TAYLOR said all it would take to comply with regulations
is to notify the public with a list of airports where meetings are
to be held; all meetings could be held on the same day at the same
time. He agreed that all airport employees will not be
knowledgeable of every single aspect of the proposed regulations,
however he noted when the comments are written up, they will be in
plain English and the local people will understand them. He
suggested that DOTPF be more creative in the way it looks at the
process to find a way to provide meaningful public input from the
real users and operators of the airports.
MR. STEINER maintained Chairman Taylor's and Senator Lincoln's
concerns are valid, and as the agency attorney, he will bring their
ideas to the Department of Law attorneys to see what they can do.
Number 563
REPRESENTATIVE JAMES stated the Department of Health and Social
Services' employees, when they were writing regulations for
assisted living homes, sat down with the consumers and operators to
find out what would work. She believes that as long as the public
hearing process is followed, DOTPF has the right to ask questions
of the people who will be affected before drafting the regulations.
She asked Mr. Steiner to check out that possibility.
SENATOR LINCOLN questioned how Sitka, which is an international
airport, would respond to the proposed regulations as an
international airport as well as a rural airport.
DEPUTY COMMISSIONER PARKAN replied the book of international
airport regulations refers to the international airport system
which includes Anchorage and Fairbanks only.
SENATOR LINCOLN asked whether personnel at the Wrangell airport,
which is international, would learn what the international
regulations are by reading the rural airport regulations.
DEPUTY COMMISSIONER PARKAN explained the distinguishing features of
the international airports are size, and the fact that they have
operating agreements, and not just that a plane from a mine in
Canada lands at it.
CHAIRMAN TAYLOR added the true distinction is whether the airport
has a duty-free store. He thanked Deputy Commissioner Parkan for
DOTPF's participation in the meeting.
KIM ROSS, Executive Director of the Alaska Air Carriers'
Association (AACA), stated no one is more thankful than she for the
90 day comment period extension. She said she is one of the few
people in the State who have been able to read the 226 page
document, and because of its length, it is hard for her membership
to read and respond to it. She stated many years ago more carriers
were involved and worked on the draft regulations, but most are
worn out. She informed committee members that she attended the
three day workshop in Anchorage two weeks ago: participants were
disgruntled when they saw the notice that said that all prior
comments were no longer being considered and that the workshops
would not be recorded, so that the only thing going on the record
would be written comments. She noted 12 DOTPF employees were at
the workshop and two members of the public. She felt DOTPF created
an adversarial relationship with participants by arranging a
meeting in which no comments would be recorded.
MS. ROSS discussed four issues the AACA has with the proposed
regulations. The AACA needs fair and reasonable rents and fees.
Second, the AACA needs reasonable lease terms and renewal
provisions. Third, AACA needs reasonable provisions for ownership,
sales or sublease of those improvements. Fourth, AACA needs
reasonable general provisions for use and quiet enjoinment.
MS. ROSS said she learned a lot from speaking with DOTPF employees
at the workshop. Afterward, she read through HB 543, which passed
in 1996. She thought HB 543 was a great outline of what the users
want to see within the regulations. She hoped the proposed
regulations would follow the intent of HB 543 but was told by the
attorney who has been working on the draft regulations for years
that she was being naive because the first section of HB 543
provides discretion to DOTPF and lacks a definition of what is in
the state's best interest, rendering HB 543 meaningless.
Number 445
CHAIRMAN TAYLOR said he worked on HB 543 and understands the
frustration over this issue. He asked Ms. Ross whether it is
conceivable to AACA that the Legislature could revisit that
statute, remove the areas of discretion and provide specific
direction to DOTPF. He maintained the Legislature set a policy
that they and the users understand; DOTPF has not.
MS. ROSS said she is trying to be more open-minded during this
regulation go-around, and has been brainstorming with legislative
staff. They have discussed the possibility of including a mission
statement or goals and objectives as a preamble to the regulations.
They also went through DOTPF's budget and pulled out the language
that speaks to the goals of DOTPF's divisions.
CHAIRMAN TAYLOR informed Ms. Ross that the mission statement for
DOTPF within the budget was vetoed by the Governor.
MS. ROSS repeated that HB 543 was a very good bill that contained
intent language. She questioned the purpose of that language if
DOTPF does not have to abide by it.
CHAIRMAN TAYLOR repeated that maybe the Legislature needs to remove
some of the discretion given to DOTPF in HB 543 by replacing the
word "may" with the word "shall."
MS. ROSS said to be fair to DOTPF, sometimes AACA wants it to have
discretion, but in many instances, HB 543 actually reads "shall"
yet the intent is not followed. She provided the following
example. About 10 years ago, managers at Merrill Field implemented
a new leasing policy, similar to the policy proposed in the draft
regulations. The leasing policy emphasized an increase in new
revenues, resulting in a decrease in the number of takeoffs and
landings from over 500,000 per year to 190,000 per year. A lot of
those users moved to the Birchwood airport. ERA Aviation has a
hangar at Merrill Field that has been vacant for five years; ERA
cannot sell or lease it because of the regulations that Merrill
Field operates under.
Number 383
FELIX MAGUIRE, representing the Alaska Airmen's Association, an
association of 1200 pilots throughout Alaska, stated he appreciates
the 90 day comment extension period. He made the following
comments. His membership has regional offices in Bethel, Kenai,
Fairbanks, and Juneau; it is concerned with rural airports as well
as the Anchorage airport. When he read the regulations, a few
things struck him immediately. First, the local FAA administrator
does not have the discretion to change the FAA regulations, yet the
draft state regulations give a lot of discretion to local managers
and DOTPF headquarters. Much of that discretion needs to come out.
The draft regulations are written like an operations manual; they
tell airport managers how to run their businesses. The regulations
should allow airport managers to have their own in-house operations
manuals. The regulations should distinguish between international
and rural airports, to cut down on duplication. Leasing has always
been on a first come, first serve, basis. Existing regulations set
the fee for the first five years. The new draft regulations allow
fee revisions every two and one-half years which will be a serious
obstacle to business financing. In addition, ownership will revert
to the State after 55 years. That restriction will discourage
people from investing as much in their facilities. HB 543 requires
that the lessee be in compliance with the existing lease. The new
draft regulations will require that the lessee have the property
evaluated which may outweigh the cost of the lease. Asking people
to go through that many hoops is shortsighted. The AAA realizes
that something must be done about the shortage of tie-down spaces,
however a pilot who invests $150,000 in a plane needs to know
he/she can lease a spot for more than five years, especially when
people wait 20 years to get a space. The new regulations will
require applicants to have a float rating to get on the wait list.
Aircraft owners are not going to want to get a float rating every
year when they have to wait 20 years before they get a spot.
Pilots should be able to get a float rating when their names are in
the top ten on the list.
MR. MAGUIRE said he has asked his members for input to the draft
regulations, and he will submit those comments to DOTPF. He
expressed concern about how DOTPF will maintain continuity in this
process being that Mr. Pavish is retiring next week.
Number 272
CHAIRMAN TAYLOR said he agrees with Mr. Maguire's comment that the
draft regulations read more like an operator's manual. He asked
Mr. Maguire to review HB 543 and, if users are unsatisfied with
DOTPF's regulatory process this time, work with him to revisit
legislation next session.
LAURIE SUTTMEIER and RON SIMPSON of the Federal Aviation
Administration noted they were present to observe the hearing.
CHAIRMAN TAYLOR noted the FAA regulations regarding airport
security machines are incredible. He said a person can carry a
five pound metal anchor through an airport security machine in San
Francisco or Washington, D.C., but he can't wear a pair of
suspenders through an airport security system in Wrangell,
Petersburg, Yakutat or Cordova. He said he does not understand the
different standards set at tiny airports that have never had a
problem with hijacking.
MR. SIMPSON said he will forward Chairman Taylor's concerns to
Federal Aviation Security.
CHAIRMAN TAYLOR asked Mr. Simpson to have someone from the FAA
complaint section contact his office to discuss 737 200 series
combies being flown by Alaska Airlines that have a history of
mechanical problems far and above an acceptable level. He thanked
Mr. Simpson and Ms. Suttmeier for their attendance and asked them
to provide input on the draft regulations.
DEPUTY COMMISSIONER PARKAN stated DOTPF would be happy to accept
the minutes from today's meeting to be included on the record for
consideration. He also noted that Mr. Pavish has been with DOTPF
for 30 years and is retiring next week. Mr. Pavish has been the
principal navigator of airport regulations and many issues related
to airports. He thanked Mr. Pavish for his hard work.
CHAIRMAN TAYLOR also thanked Mr. Pavish on behalf of the committee
and the Senate, and said he has been a rock in the DOTPF
institution and will be missed.
SENATOR LINCOLN asked whether the extension of the comment period
will have any affect on the people who testified at the last
meeting whose leases are up for renewal.
DEPUTY COMMISSIONER PARKAN said any extension will exacerbate a bit
those folks who are waiting for the regulations to be finalized in
order to take advantage of certain aspects that benefit people.
DOTPF will work with them to mitigate any harm the extension might
have.
Number 181
SENATOR LINCOLN stated she hopes DOTPF will use the
teleconferencing system at all hearings to allow people to comment,
however she does not want teleconference use to be used as an
excuse to not go to rural Alaska. She stated DOTPF could take
comments from Anchorage over the teleconference in Aniak.
DEPUTY COMMISSIONER PARKAN said her point was well taken and he
would consider her comments.
CHAIRMAN TAYLOR asked DOTPF to reply to Mr. Maguire's concerns
about the lease renewal time of 2+ years as banks will want a
minimum time period of 5 years; the evaluation of properties which
will be time consuming and expensive and could be done by airport
managers; and the float rating requirement which could be required
when a space becomes available.
DEPUTY COMMISSIONER PARKAN agreed, and said many of Mr. Maguire's
points have good answers and can be clarified; DOTPF will speak
with him.
Number 139
KIP KNUTSON, ERA Aviation, said ERA is delighted to have an
additional 90 days to comment which will allow for reasonable and
appropriate feedback. He noted the draft regulations are supposed
to govern the landlord-tenant relationship. Right now the majority
of power is given to the landlord. ERA, as tenants, believes a
better balance is necessary so that tenants do not always have to
go to court for interpretation of discretionary powers of airport
managers. Neither the "discretionary powers" of airport managers,
the "state's best interest," nor "reasonable" are defined in
statute or in the packet proposed by DOTPF. He suggested that
specific language be put in the regulations so that users have
something concrete to work with.
CHAIRMAN TAYLOR asked Mr. Knutson to also review HB 543 and let
legislators know how the law can be tightened up.
MR. KNUTSON commented the term "state's best interest" might be
different for rural and urban airports, but that key concept should
not be tossed into the court for clarification.
CHAIRMAN TAYLOR thanked all participants, and wished Mr. Pavish the
best in his retirement. He then adjourned the meeting at 4:37 p.m.
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