Legislature(2001 - 2002)

02/01/2001 09:43 AM Senate ARR

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
                       JOINT COMMITTEE ON                                                                                     
                ADMINISTRATIVE REGULATION REVIEW                                                                              
                        February 1, 2001                                                                                        
                           9:43 a.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 Georgianna Lincoln                                                                                                      
                                                                                                                                
SENATE MEMBERS ABSENT                                                                                                         
                                                                                                                                
Senator Lyda Green                                                                                                              
                                                                                                                              
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
Review of January 8, 2001, Fish & Game Public Hearing on                                                                        
Shellfish Regulations                                                                                                           
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                              
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
DOUG MECUM, Director                                                                                                            
Division of Commercial Fisheries                                                                                                
Alaska Department of Fish & Game                                                                                                
PO Box 25526                                                                                                                    
Juneau, Alaska 99802-5526                                                                                                       
POSITION STATEMENT:  Testified on the mariculture regulations.                                                                  
                                                                                                                                
KEN IMAMURA, Mariculture Coordinator                                                                                            
Division of Commercial Fisheries                                                                                                
Alaska Department of Fish & Game                                                                                                
PO Box 25526                                                                                                                    
Juneau, Alaska 99802-5526                                                                                                       
POSITION STATEMENT:  Reviewed the access questions regarding the                                                                
January 8, 2001, hearing.                                                                                                       
                                                                                                                                
MARIE BADER                                                                                                                     
Kachemak Shellfish Growers Cooperative                                                                                          
1319 Bay Avenue                                                                                                                 
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Testified on the mariculture regulations                                                                   
and the January 8, 2001, hearing.                                                                                               
                                                                                                                                
GARY SEIMS, President                                                                                                           
Kachemak Shellfish Growers Cooperative                                                                                          
PO Box 4213                                                                                                                     
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Testified on the December 1999 mariculture                                                                 
meeting.                                                                                                                        
                                                                                                                                
DEBBIE SEIMS                                                                                                                    
Kachemak Shellfish Growers Cooperative                                                                                          
PO Box 4213                                                                                                                     
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Expressed the need to develop a more user-                                                                 
friendly process.                                                                                                               
                                                                                                                                
JOHN AGOSTI                                                                                                                     
PO Box 3475                                                                                                                     
Seward, Alaska 99664                                                                                                            
POSITION STATEMENT:  Expressed the need to slow the process.                                                                    
                                                                                                                                
PETER HUYCKE                                                                                                                    
2815 Glacier Street                                                                                                             
Anchorage, Alaska 99508                                                                                                         
POSITION STATEMENT:  Recommended that Mr. Walsh's [former                                                                       
director of the Division of Insurance] approach be followed.                                                                    
                                                                                                                                
ANDY KITTAMS                                                                                                                    
PO Box 1544                                                                                                                     
Petersburg, Alaska 99833                                                                                                        
POSITION STATEMENT:  Testified on the history of the regulations                                                                
process.                                                                                                                        
                                                                                                                                
BRIAN MATTSON                                                                                                                   
PO Box 1168                                                                                                                     
Petersburg, Alaska 99833                                                                                                        
POSITION STATEMENT:  Indicated support of Senator Taylor's                                                                      
suggestion [to extend the process].                                                                                             
                                                                                                                                
GARY ZAUGG                                                                                                                      
(No address provided.)                                                                                                          
POSITION STATEMENT:  Indicated support of Senator Taylor's                                                                      
suggestion [to extend the process].                                                                                             
                                                                                                                                
SCOTT THOMAS, Founder and Managing Member,                                                                                      
Alaska Trademark Shellfish, LLC                                                                                                 
945 Lincoln Street                                                                                                              
Ketchikan, Alaska 99901                                                                                                         
POSITION STATEMENT:  Recommended starting over with the                                                                         
regulations.                                                                                                                    
                                                                                                                                
RAY RaLONDE, Aquaculture Specialist                                                                                             
Marine Advisory Program                                                                                                         
University of Alaska                                                                                                            
2221 E. Northern Lights Boulevard, Number 110                                                                                   
Anchorage, Alaska 99508                                                                                                         
POSITION STATEMENT:  Testified on the process that led to the                                                                   
rewrite of these regulations.                                                                                                   
                                                                                                                                
DENNIS WATSON, Mayor                                                                                                            
City of Craig                                                                                                                   
Box 725                                                                                                                         
Craig, Alaska                                                                                                                   
POSITION STATEMENT:  Testified on the process.                                                                                  
                                                                                                                                
BOB HARTLEY, Homer Oyster Grower                                                                                                
PO Box 2284                                                                                                                     
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:  Testified on the process.                                                                                  
                                                                                                                                
RODGER PAINTER, Vice President                                                                                                  
Alaskan Shellfish Growers Association                                                                                           
Box 20704                                                                                                                       
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:  Testified on the process.                                                                                  
                                                                                                                                
SHANNON O'FALLON, Assistant Attorney General                                                                                    
Natural Resources Section                                                                                                       
Civil Division (Juneau)                                                                                                         
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, Alaska 99811-0300                                                                                                       
POSITION STATEMENT:   Testified on  the Department of  Law's part                                                               
in these regulations and the lawsuit.                                                                                           
                                                                                                                                
RON LONG                                                                                                                        
Quetekcak Shellfish Hatchery                                                                                                    
Box 2464                                                                                                                        
Seward, Alaska                                                                                                                  
POSITION STATEMENT:   Testified  on the process  and hope  for an                                                               
extension.                                                                                                                      
                                                                                                                                
ARTHUR TILGNER, M.D.                                                                                                            
222 W. 7th Street, Number 14                                                                                                    
Anchorage, Alaska 99508                                                                                                         
POSITION  STATEMENT:   Testified  on the  lack  of dialogue  from                                                               
ADF&G.                                                                                                                          
                                                                                                                                
JIM REEVES, Attorney                                                                                                            
1031 W. 4th Avenue                                                                                                              
Anchorage, Alaska 99517                                                                                                         
POSITION  STATEMENT:   Testified  that  [ADF&G]  already has  the                                                               
necessary   guidance  to   do  what   is   necessary  for   these                                                               
regulations.                                                                                                                    
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 01-3, SIDE A                                                                                                               
Number 0001                                                                                                                     
                                                                                                                                
CHAIR LESIL McGUIRE called the  Joint Committee on Administrative                                                           
Regulation  Review  to  order  at   9:43  a.m.    Representatives                                                               
McGuire, James,  and Hayes  and Senator  Lincoln were  present at                                                               
the call to order.  Senator  Taylor arrived as the meeting was in                                                               
progress.   Representatives  Kerttula,  Scalzi,  and Stevens  and                                                               
Senator Elton were also in attendance.                                                                                          
                                                                                                                                
Review  of  January  8,  2001,  Fish &  Game  Public  Hearing  on                                                             
Shellfish Regulations                                                                                                         
                                                                                                                                
Number 0072                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  explained that  following  the  January 8,  2001,                                                               
public hearing  by the Alaska  Department of Fish &  Game (ADF&G)                                                               
there  were complaints  centered  around access  to the  hearing.                                                               
Specifically,  the doors  were locked  for  a period  of time  in                                                               
Anchorage  and  thus  some  people  were  not  able  to  testify.                                                               
Furthermore, several legislative  information offices (LIOs) were                                                               
not  permitted  to testify  at  the  hearing.   Also  there  were                                                               
complaints regarding the notification  process.  Therefore, Chair                                                               
McGuire announced that  this hearing would be  an opportunity for                                                               
the public  to voice its  concerns, which the  committee believes                                                               
to  be important.    She  hoped that  at  the  conclusion of  the                                                               
hearing, a better  system could be developed  and carried through                                                               
the next year.                                                                                                                  
                                                                                                                                
Number 0147                                                                                                                     
                                                                                                                                
DOUG MECUM,  Director, Division  of Commercial  Fisheries, Alaska                                                               
Department of  Fish & Game,  deferred questions  regarding access                                                               
to the January 8, 2001, hearing to Ken Imamura.                                                                                 
                                                                                                                                
Number 0226                                                                                                                     
                                                                                                                                
KEN  IMAMURA,  Mariculture  Coordinator, Division  of  Commercial                                                               
Fisheries,  Alaska  Department of  Fish  &  Game, turned  to  the                                                               
questions regarding the doors being  locked during the January 8,                                                               
2001,  hearing.   He informed  the committee  that the  Anchorage                                                               
office has  had security problems in  the past and thus  a policy                                                               
of locked  doors after  business hours,  5:00 p.m.,  was adopted.                                                               
Typically, there  is staff  in the lobby  and exiting  the office                                                               
through 6:00 p.m.  The January  8, 2001, hearing was scheduled to                                                               
begin  at 6:30  p.m.   Therefore, prior  to the  hearing he  made                                                               
arrangements  with Pinkerton  Security  to have  a  guard at  the                                                               
front door in order to open  the door after the close of business                                                               
so  that there  would be  access to  the meeting.   However,  the                                                               
guard  did  not  arrive  and  after  calling  Pinkerton  Security                                                               
someone else  was assigned.   He said that  he did not  know when                                                               
the  replacement  guard  arrived  because  he  was  chairing  the                                                               
meeting.  He noted that Ellen  Simpson, staff for ADF&G, was also                                                               
in attendance at  the January 8, 2001, hearing.   Ms. Simpson was                                                               
taking notes  and checking the  door periodically.   Furthermore,                                                               
another  staff person  arrived at  this meeting  approximately 30                                                               
minutes  after the  meeting began  and her  son watched  the door                                                               
until  a  replacement guard  arrived.    Mr. Imamura  stated,  "I                                                               
believe  that we  took those  steps that  we could.   And  in the                                                               
absence of the  assigned security person, I think we  did what we                                                               
could in order to allow people into the building."                                                                              
                                                                                                                                
Number 0460                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES  said  that she  understood  Mr.  Imamura's                                                               
dilemma.   However,  it  seems that  the  meeting shouldn't  have                                                               
started if the doors were  locked.  She related her understanding                                                               
that  Mr. Imamura  knew the  doors were  locked when  the meeting                                                               
began.                                                                                                                          
                                                                                                                                
MR. IMAMURA  affirmed that  he knew  the doors  were locked.   He                                                               
reiterated that  the building has  a security policy  under which                                                               
the  doors  remain  locked  after  business  hours.    Therefore,                                                               
arrangements were made  with Pinkerton Security [to  have a guard                                                               
present after hours].                                                                                                           
                                                                                                                                
REPRESENTATIVE  JAMES  asked if  Mr.  Imamura  believed, when  he                                                               
began the  meeting, that someone  was present to let  people into                                                               
the building.  She inquired as  to when Mr. Imamura realized that                                                               
no   one   was  present   to   let   people  in   the   building.                                                               
Representative James  related her belief that  the meeting should                                                               
not have  started until [someone  was present to let  people into                                                               
the building].                                                                                                                  
                                                                                                                                
MR.  MECUM said,  "Looking back,  from what  I know  of it,  that                                                               
probably is  what we should've  done.   I just wanted  to clarify                                                               
that that time was no more  than 15 minutes and there were people                                                               
checking within that 15 minute period."                                                                                         
                                                                                                                                
Number 0615                                                                                                                     
                                                                                                                                
SENATOR TAYLOR  remarked that the  department and  the applicants                                                               
have been going through a  difficult struggle in order to develop                                                               
a meaningful set of regulations.  He said:                                                                                      
                                                                                                                                
     I  think  what has  happened  is  that because  of  the                                                                    
     litigation that  is pending and  because of  an attempt                                                                    
     by  the  department  to  move  with  some  dispatch  to                                                                    
     resolve some  of the ongoing  questions, that  what has                                                                    
     happened  is   that  this   entire  question   of  this                                                                    
     wonderful  resource and  how it's  going to  be handled                                                                    
     has  been sort  of  pressure cooked  down  into a  very                                                                    
     short timeframe  ....  The  applicants were  anxious to                                                                    
     get started  in their businesses and  they feel certain                                                                    
     economic   pressures  and   time   constraints.     The                                                                    
     department,  not  being  adequately  prepared  to  move                                                                    
     forward,  felt certain  concerns also.   And  these two                                                                    
     forces  are now  clashing in  a way  that, I  think, is                                                                    
     really  counterproductive  both  to the  resource  and,                                                                    
     certainly,  to  the  normal  processes  that  we  would                                                                    
     expect  to  go on  -  as  far  as public  processes  in                                                                    
     developing  these  things.     I  guess  those  are  my                                                                    
     concerns.                                                                                                                  
                                                                                                                                
SENATOR TAYLOR continued:                                                                                                       
                                                                                                                                
     I would  hope that one  of the results of  this meeting                                                                    
     could be  that the  department would  forestall further                                                                    
     action on these  regulations until extensive additional                                                                    
     public  input can  be received,  especially from  those                                                                    
     people  directly impacted.    ...maybe we  need to  put                                                                    
     these regs off for a  period of say three months during                                                                    
     which the legislature  can look at these  things and we                                                                    
     can  have a  few more  hearings because  there are  way                                                                    
     more people to testify today  than we are going to have                                                                    
     time for.                                                                                                                  
                                                                                                                                
                                                                                                                                
SENATOR LINCOLN  requested that the  department speak  to Senator                                                               
Taylor's comments.                                                                                                              
                                                                                                                                
Number 0814                                                                                                                     
                                                                                                                                
MR.  MECUM   explained  that  every   two  years   people  submit                                                               
applications  for leases  for mariculture  farming.   The  recent                                                               
application period  started on  January 1st.   At that  time, the                                                               
department had to  make the decision regarding whether  or not to                                                               
accept applications  for on-bottom clam farming  since there were                                                               
not regulations in place [for  on-bottom clam farming].  He noted                                                               
that  the Shellfish  Growers Association  didn't  believe it  was                                                               
appropriate  to  not  accept applications,  to  which  Mr.  Mecum                                                               
agreed.    This  resulted  in   the  pressure  to  develop  these                                                               
regulations  being   placed  on  the  department   and  thus  the                                                               
department was under  a tight timeline.   However, the department                                                               
didn't want to  have a situation in which  regulations would come                                                               
out after  people had submitted their  applications, because that                                                               
could  result  in  some  farms   being  inconsistent  with  those                                                               
regulations.     Therefore,   under  the   consultation  of   the                                                               
Department  of Law  (DOL),  a schedule  was  developed such  that                                                               
draft  regulations  would  be  available  for  public  review  by                                                               
approximately  December  15.   There  would  be a  30-day  public                                                               
review period for those regulations.   Those regulations, [after]                                                               
DOL's  review, would  eventually be  submitted to  the Lieutenant                                                               
Governor and in  place by approximately March 15 or  April 1.  He                                                               
noted that  the application period closes  on April 30.   He also                                                               
noted that  people were  notified in  advance of  the application                                                               
period.                                                                                                                         
                                                                                                                                
MR.  MECUM noted  that  the department  went  beyond the  written                                                               
public comment  during the  30-day period and  set up  two public                                                               
hearings that  were held  in Anchorage and  Ketchikan.   Prior to                                                               
the  two hearings,  the Shellfish  Growers Association  requested                                                               
that  the deadline  for public  comment be  extended and  that an                                                               
additional hearing be held in  Juneau, to which Mr. Mecum agreed.                                                               
Therefore,  the  public  comment  deadline  was  extended  by  an                                                               
additional 24 days and there  was an additional public hearing in                                                               
Juneau, which  was teleconferenced.   Since that time,  Mr. Mecum                                                               
received a  request from [the  Shellfish Growers  Association] to                                                               
have an informal dialogue in order  to find common ground as well                                                               
as identify points  of disagreement.  Mr. Mecum agreed  to hold a                                                               
public panel workshop, which will  also be teleconferenced, to be                                                               
held on February 7.  He  explained that the panel will consist of                                                               
three people  selected by the  Shellfish Growers  Association and                                                               
the  industry, one  person representing  the United  Fisherman of                                                               
Alaska,  one person  representing the  Southeast Alaska  Regional                                                               
Dive Fishery Association, and Mr. Mecum.                                                                                        
                                                                                                                                
Number 1071                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE asked  if  the  department has  a  policy for  how                                                               
public  hearings are  conducted.   She asked  if the  hearings in                                                               
Anchorage, Juneau, and Ketchikan  followed the same practices and                                                               
procedures  in each  hearing.   She noted  that her  constituents                                                               
have informed her of inconsistencies between those hearings.                                                                    
                                                                                                                                
MR. MECUM  answered that there  is not  a strict policy,  but the                                                               
department  attempts  to  make   [public  hearings]  as  open  as                                                               
possible.  He remarked that  he was not sure what inconsistencies                                                               
had been pointed out.                                                                                                           
                                                                                                                                
CHAIR  McGUIRE specified  that  there  were inconsistencies  with                                                               
regard  to  which  Legislative  Information  Offices  (LIOs)  had                                                               
access to call in and which sites were listen-only.                                                                             
                                                                                                                                
MR.  MECUM  agreed  that  there   were  differences  between  the                                                               
[Anchorage  and Ketchikan]  meetings  and  therefore, the  Juneau                                                               
meeting was held in order  to maximize the opportunity for people                                                               
to call in.                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  asked, "In  that  hearing  [in Juneau],  did  you                                                               
teleconference  it to  all  the other  sites  that had  expressed                                                               
concerns in the past?"                                                                                                          
                                                                                                                                
MR. MECUM deferred to Mr. Imamura.                                                                                              
                                                                                                                                
MR.  IMAMURA  informed the  committee  that  for the  January  30                                                               
meeting the  LIOs for Kodiak,  Homer, Seward,  Cordova, Wrangell,                                                               
Petersburg, and  Ketchikan were tied  in.  A  second supplemental                                                               
public  notice was  issued, prior  to  the meeting,  in order  to                                                               
include the  Anchorage and Kenai  LIOs.  The Anchorage  and Kenai                                                               
LIOs were added  due to requests by the department  and people in                                                               
Anchorage.   Mr. Imamura said, "Having  experienced the Ketchikan                                                               
office getting hooked up into  the Anchorage meeting, I wanted to                                                               
avoid, as much as possible, the  recurrence of that."  He pointed                                                               
out that the  aforementioned sites include about all  of the LIOs                                                               
on the standard list between Kodiak and Ketchikan.                                                                              
                                                                                                                                
Number 1224                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES  related her understanding that  the rushing                                                               
of  the process  was due  to timing  and people  wanting to  make                                                               
applications  that weren't  defined in  regulations.   Therefore,                                                               
she  asked  whether  it  would   be  allowable  by  law  for  the                                                               
department   to   accept   applications   without   the   written                                                               
regulations.    She   acknowledged  that  the  regulation-writing                                                               
process  takes time  and can  be cumbersome.   However,  she said                                                               
that she didn't believe shortcuts should be taken.                                                                              
                                                                                                                                
MR.  MECUM   pointed  out  that   throughout  this   process  the                                                               
department has consulted with DOL  regarding the timeline, public                                                               
access,  and  decisions  with  respect  to  whether  applications                                                               
should be received  and modified.  The latter  was also discussed                                                               
with the  Department of Natural  Resources (DNR) as well  as with                                                               
DOL.  He  said that the advice he received  was that [the process                                                               
followed] was appropriate.                                                                                                      
                                                                                                                                
Number 1309                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES  related her  understanding that one  of the                                                               
primary reasons for regulations is  to ensure stability and equal                                                               
treatment so that everyone follows  the same rules.  However, she                                                               
said  that   she  wasn't  convinced  that   people  in  qualified                                                               
positions  can't   make  those   same  decisions  based   on  the                                                               
information  present.   Representative  James  remarked that  she                                                               
believes there is an understanding  of what is fair, even without                                                               
a written law.                                                                                                                  
                                                                                                                                
MR. MECUM agreed.   He pointed out that prior  to the application                                                               
period these  issues came  up and  people in  qualified positions                                                               
approached [the  applications] from a policy  standpoint and were                                                               
attaching permit  conditions that  [the department]  thought were                                                               
consistent with the  constitution and the Aquatic  Farming Act as                                                               
well as existing regulations.   When those permit conditions were                                                               
provided  to the  applicants, some  didn't agree  with them.   In                                                               
fact, [the  department] is under  litigation because  those folks                                                               
believe   the   permit   conditions  applied   as   policy   were                                                               
inappropriate and  against the law.   Mr. Mecum said,  "You can't                                                               
tell the  public that  they can't do  something ...  just because                                                               
someone in a policy level position  said that they couldn't.  ...                                                               
The   laws  of   the  state   require  us   to  go   through  the                                                               
Administrative  Procedure  Act (APA)  and  go  to the  public  to                                                               
develop  these regulations  that  ... create  this level  playing                                                               
field."  Mr.  Mecum related his belief that  [the department] has                                                               
been  rightly criticized,  over the  course of  the past  four or                                                               
five years,  regarding not moving  quickly enough to  develop the                                                               
regulations.    Therefore, the  department  tried  to respond  by                                                               
moving forward on these regulations  and now, there are questions                                                               
regarding whether the department is moving too quickly.                                                                         
                                                                                                                                
Number 1475                                                                                                                     
                                                                                                                                
SENATOR TAYLOR turned to Senator  Lincoln's question and inquired                                                               
as  to the  problem with  delaying [the  regulation process]  for                                                               
about 90  days in order  to issue  the next draft  of regulations                                                               
and  provide the  public and  affected people  plenty of  time to                                                               
comment.   He pointed  out that he  and Representative  James had                                                               
worked  on   the  regulator  process   with  the   Department  of                                                               
Transportation & Public Facilities  regarding airport hangars for                                                               
about eight years.   Senator Taylor remarked that  he didn't care                                                               
whether  it  took   six  months  to  a  year   to  develop  these                                                               
regulations  so long  as the  regulations are  good and  workable                                                               
within the industry and the department.                                                                                         
                                                                                                                                
MR. MECUM said  that is a good suggestion and  that is an option.                                                               
He remarked that [the department] has  done what it could to meet                                                               
the  April  30  deadline  because   that  is  a  DNR  regulation.                                                               
However,  he indicated  that extending  [DNR's] regulation  is an                                                               
option.    Mr. Mecum  pointed  out  that  once people  submit  an                                                               
application that is  ultimately approved, it takes  some time and                                                               
[the department] has  been criticized in the past  for not acting                                                               
quickly enough on these applications  in order that the applicant                                                               
can  get their  farm operating  by the  next spring.   Therefore,                                                               
extension  of  the  process  would be  a  consideration  for  the                                                               
industry also.   Mr.  Mecum said,  "I guess,  at this  point, I'm                                                               
open to  that ... option  if we get to  the point where  we can't                                                               
esolve some of these things and we need more time."                                                                             
                                                                                                                                
SENATOR LINCOLN  indicated the need  to [take up  the possibility                                                               
of extending  this process] during  the February 7 meeting.   She                                                               
expressed  her  hope that  the  department  would not  put  these                                                               
regulations  in place  if there  wouldn't  be any  damage to  the                                                               
farmers during that time.                                                                                                       
                                                                                                                                
MR.  MECUM reiterated  that extension  of the  process is  a good                                                               
suggestion and will be reviewed at the panel meeting.                                                                           
                                                                                                                                
SENATOR  TAYLOR stated  the concern  that at  the panel  meeting,                                                               
only  [five]  other  people  will be  heard.    Therefore,  those                                                               
impacted have only  had three opportunities to  have their voices                                                               
heard  and will  have no  other  opportunity for  such.   Senator                                                               
Taylor encouraged having the panel  hearing and producing a final                                                               
set  of regulations  to  be put  out for  a  full public  hearing                                                               
process.   He  didn't believe  that the  department's regulations                                                               
precluded it from doing such.                                                                                                   
                                                                                                                                
MR. MECUM  reiterated that Senator  Taylor's suggestion  is good.                                                               
However, he noted that the  department would have to consult with                                                               
DOL and  DNR as well as  the industry [in regard  to whether such                                                               
action would be appropriate].                                                                                                   
                                                                                                                                
Number 1773                                                                                                                     
                                                                                                                                
MARIE  BADER,  Kachemak  Shellfish  Growers  Cooperative  (KSGC),                                                               
testified via  teleconference.   She complimented  Senator Taylor                                                               
on  his remarks,  especially those  remarks  regarding the  short                                                               
timeframe.   Ms. Bader informed  the committee that it  has taken                                                               
six  or seven  years of  those  in the  industry approaching  the                                                               
department for  clarification of  these regulations.   Therefore,                                                               
the short timeframe is self-imposed by the department.                                                                          
                                                                                                                                
MS. BADER turned to the January  8 ADF&G meeting in Anchorage and                                                               
remarked  that  a note  on  the  door  would  have helped.    She                                                               
informed the  committee that at  the meeting she had  a congenial                                                               
talk with  one of the regulators  whom she told that  no one from                                                               
the industry  had ever been  invited to  a work session  on these                                                               
regulations.   This  regulator said  that those  in the  industry                                                               
weren't invited due to the pending  lawsuits.  She pointed out to                                                               
the regulator that these lawsuits  occurred fairly recently while                                                               
[the industry] has  waited for these regulations  for many years,                                                               
which seemed to be news to the regulator.                                                                                       
                                                                                                                                
Number 1926                                                                                                                     
                                                                                                                                
GARY  SEIMS, President,  Kachemak Shellfish  Growers Cooperative,                                                               
testified via  teleconference.  He addressed  the hearing process                                                               
for those  in the mariculture  industry.  He reviewed  a December                                                               
1999 hearing in  which public comment was taken in  regard to on-                                                               
bottom mariculture in  Kachemak Bay.  This  hearing was scheduled                                                               
to coincide with  the controversial jet ski  issue, and therefore                                                               
he felt that  the mariculture industry was set up  for failure by                                                               
the department.   He said that the negative  input [regarding the                                                               
mariculture  issue]   was  secondary   to  the  jet   ski  topic.                                                               
Therefore, Mr.  Seims related his  belief that ADF&G  should make                                                               
the hearings fair  and unbiased and not set up  either side of an                                                               
issue for  failure.  He  noted that the comment  period regarding                                                               
[the on-bottom mariculture in Kachemak  Bay] also occurred during                                                               
the  holidays.    [The Kachemak  Shellfish  Growers  Cooperative]                                                               
requested  that  be  "broken up,"  but  [the  department]  wasn't                                                               
willing to do so.  Mr. Seims  expressed the need to clean this up                                                               
such that the regulations can be developed.                                                                                     
                                                                                                                                
DEBBIE  SEIMS testified  via teleconference.   She  expressed the                                                               
need for the process to  be more user-friendly because after many                                                               
meetings she feels as if she is getting nowhere fast.                                                                           
                                                                                                                                
Number 2031                                                                                                                     
                                                                                                                                
JOHN AGOSTI testified  via teleconference.  Mr.  Agosti said that                                                               
applications can and should be accepted  by DNR and ADF&G.  Those                                                               
applications  can be  processed  under  the existing  regulations                                                               
while  the on-bottom  regulations are  developed over  the coming                                                               
months.  Therefore, public comment  can occur.  Mr. Agosti echoed                                                               
earlier remarks  that the department  has had  many opportunities                                                               
over the  years to work on  this and thus would  have avoided the                                                               
rush.   He indicated the  need for  the department to  follow the                                                               
recommendation to slow the process.                                                                                             
                                                                                                                                
PETER  HUYCKE  testified via  teleconference.    He informed  the                                                               
committee that  he has nothing  to do with shellfish  farming nor                                                               
does he intend  to.  Mr. Huycke informed the  committee that when                                                               
David  Walsh   was  appointed  the  Director   of  Insurance,  he                                                               
determined  that  the  entire insurance  code  was  obsolete  and                                                               
should be  redone.  Mr. Walsh's  staff found almost 150  pages of                                                               
changes.  At  that point, Mr. Walsh requested  that the insurance                                                               
industry [be part of] a task force  with him in order to work out                                                               
differences.   This task force  met once  a week for  almost four                                                               
months.   Mr. Huycke informed  the committee that  a satisfactory                                                               
consensus was  reached and  many of  the impracticalities  of the                                                               
regulations were  eliminated.  Therefore, Mr.  Huycke recommended                                                               
that Mr. Walsh's approach be followed.                                                                                          
                                                                                                                                
Number 2175                                                                                                                     
                                                                                                                                
ANDY  KITTAMS testified  via teleconference.    Mr. Kittams  said                                                               
that  he  thinks  Mr.  Mecum   is  misleading  the  committee  by                                                               
insinuating that this is a new  issue.  He informed the committee                                                               
that  there have  been clam  farms in  Alaska for  over 10  years                                                               
during which time ADF&G has had  regulations in place.  Two years                                                               
ago,  the  department accepted  over  20  clam farm  applications                                                               
under the current regulations.   Furthermore, there was a special                                                               
hearing  by  the House  Resources  Standing  Committee (HRES)  in                                                               
order to  address concerns that  ADF&G was hampering  the efforts                                                               
[of clam  farmers].  Mr. Duffy(ph)  worked for Mr. Mecum  at that                                                               
time  and  he  assured  the  HRES  committee  that  user-friendly                                                               
regulations would  be in  effect by the  end of  that application                                                               
period, April  30, 1999.   The  regulations never  manifested and                                                               
thus the  department has hampered  [the industry] by  putting the                                                               
applications on hold.                                                                                                           
                                                                                                                                
MR.  KITTAMS informed  the committee  that the  department didn't                                                               
inform those involved of the new  regulations.  He noted that Mr.                                                               
Mecum  and Mr.  Imamura both  have  his e-mail  address and  home                                                               
address.    Furthermore, the  information  was  not put  "in  our                                                               
newspaper or  on our radio."   Now, the department  is expressing                                                               
the need  to get these  new regulations approved by  the upcoming                                                               
April   30,  2001,   deadline;  however,   there  are   still  20                                                               
applications  on hold  from  the last  application  period.   Mr.                                                               
Kittams explained  that if these  regulations are approved  as is                                                               
by the  April 30, 2001,  deadline, it won't matter  because there                                                               
won't  be  any clam  farm  operating  in  the  state due  to  the                                                               
regulations.   He  concluded by  saying that  [the industry]  has                                                               
tried to work  with the department and it looks  forward to doing                                                               
so  in  the  future  in   order  to  develop  some  comprehensive                                                               
regulations that the industry can work with.                                                                                    
                                                                                                                                
Number 2281                                                                                                                     
                                                                                                                                
BRIAN MATTSON  testified via teleconference.   Mr. Mattson echoed                                                               
Mr. Kittams testimony in regard  to the lack of announcements and                                                               
advertisements  for these  regulations.   He also  echoed earlier                                                               
comments  that this  situation  is practically  the  same as  two                                                               
years ago.   Mr.  Mattson indicated  support of  Senator Taylor's                                                               
suggestion [to extend the process].                                                                                             
                                                                                                                                
GARY ZAUGG testified via teleconference.   He noted his agreement                                                               
with Senator  Taylor's suggestion  [to extend  the process].   He                                                               
informed the  committee that he has  been to all of  the meetings                                                               
so far and all of them have  been different.  Mr. Zaugg turned to                                                               
the pending  lawsuits that  are addressing  a good  percentage of                                                               
what is in these codes.   These lawsuits will make some decisions                                                               
regarding what  will and will not  be allowed.  He  remarked that                                                               
the  department  just  can't write  code  when  we're  addressing                                                               
statutorial  and  constitutional  issues.     He  noted  that  he                                                               
mentioned this at the Ketchikan meeting.                                                                                        
                                                                                                                                
TAPE 01-3, SIDE B                                                                                                               
                                                                                                                                
MR.  ZAUGG said  that  he  didn't understand  how  code could  be                                                               
written "when those issues are on  the table and this code is all                                                               
going to  get thrown out."   He noted that he  attended all three                                                               
of  the meetings  and  he  only heard  two  people say  something                                                               
favorable about these regulations.   He also noted that Mr. Mecum                                                               
has  not  attended any  of  these  meetings  and thus  he  didn't                                                               
believe that  Mr. Mecum has  listened to anything  except through                                                               
Mr. Imamura,  who "has  tried."  Mr.  Zaugg emphasized,  "This is                                                               
totally out of  line.  These regulations need to  be looked at in                                                               
depth  and  not by  just  six  people,  but by  everybody  that's                                                               
involved in this industry.   And they [the regulations] shouldn't                                                               
even  be  looked  at  until  this  lawsuit  is  concluded."    He                                                               
predicted that the lawsuit would  be concluded within the next 90                                                               
days.                                                                                                                           
                                                                                                                                
Number 2322                                                                                                                     
                                                                                                                                
SCOTT  THOMAS,  Founder  and Managing  Member,  Alaska  Trademark                                                               
Shellfish (ATS), LLC, testified  via teleconference.  He informed                                                               
the  committee  that   ATS  is  a  newly   formed  LLC  involving                                                               
commercial scale aquatic farming in  the Ketchikan area.  He also                                                               
informed  the committee  that ATS  has  been intimately  involved                                                               
with  this issue  and is  currently involved  in the  litigation.                                                               
Mr.  Thomas turned  to the  process, which  he believes  has some                                                               
serious flaws.   At  the January 4th  meeting in  Ketchikan, five                                                               
people showed  up.  At  the end of  that meeting Mr.  Thomas said                                                               
that  he asked  Mr. Imamura  why the  department didn't  send out                                                               
notices to the  aquatic farmers.  Although Mr.  Imamura said that                                                               
notices  had been  sent  out,  none of  those  in Ketchikan  with                                                               
pending applications had received any  notices.  Mr. Thomas said,                                                               
"I think there was some intent  by the Department of Fish & Game,                                                               
in the process,  to get things through  in a hurry -  to sneak it                                                               
by.  Hopefully,  we put an end  to that and we can  have a little                                                               
more democratic process."                                                                                                       
                                                                                                                                
MR.  THOMAS turned  to the  regulations.   He related  his belief                                                               
that  most  people  have  been  gracious  when  saying  that  the                                                               
regulations  need  work.    Mr.  Thomas  remarked  that,  in  his                                                               
opinion,  there  is  nothing salvageable  in  the  current  draft                                                               
regulations.    Therefore,  he  suggested  starting  over.    The                                                               
current draft regulations completely  circumvent the Aquatic Farm                                                               
Act  and do  not allow  for  aquatic farming  in the  state.   He                                                               
addressed the  earlier question regarding whether  there would be                                                               
any damage to  aquatic farmers if the process moved  forward.  If                                                               
these  regulations are  enacted,  Mr. Thomas  suggested that  the                                                               
industry should approach the legislature  for an appropriation to                                                               
buy  back  the  hatchery  and offer  aquatic  farmers  a  buyback                                                               
program.   Such  an  initiative would  be  consistent with  those                                                               
involving  the  closure  of Glacier  Bay,  the  Tongass  National                                                               
Forest, and the Roadless Initiative.                                                                                            
                                                                                                                                
Number 2181                                                                                                                     
                                                                                                                                
RAY  RaLONDE, Aquaculture  Specialist,  Marine Advisory  Program,                                                               
University of Alaska, testified  via teleconference.  He informed                                                               
the  committee  that  he  has  been  involved  in  the  shellfish                                                               
aquaculture industry, education,  applied research, and technical                                                               
assistance since  1978.  He  also informed the committee  that he                                                               
has been very involved with ADF&G  over those 20 years.  Although                                                               
his past  experience with the  department has been  rewarding, he                                                               
could not say that for the  past couple of years.  Therefore, Mr.                                                               
RaLonde said that  he is probably one of the  most ardent critics                                                               
of the way  the department is handling  the mariculture problems.                                                               
He  explained  that in  1978  he  was  asked by  the  Mariculture                                                               
Coordinator of  ADF&G to assemble  a meeting of experts  in order                                                               
to  share   information  and  develop   guidelines  for   use  in                                                               
formulating more specific  regulations for on-bottom aquaculture.                                                               
That conference was  held in March of 1996 and  focused on public                                                               
issues  involved with  developing on-bottom  aquaculture species.                                                               
From that conference, Mr. RaLonde  expected the regulations to be                                                               
forthcoming.   However, it  has been  five years  and only  a few                                                               
months ago did something materialize.   He pointed out that ADF&G                                                               
has  been  before the  legislature  three  times promising  draft                                                               
regulations.   In 1999  aquatic farmers  applied for  permits and                                                               
because  there  were  no regulations  in  place,  the  permitting                                                               
process was thrown  into chaos.  In the Fall  of 2000 Mr. RaLonde                                                               
said that he was informed  by industry representatives that ADF&G                                                               
was  finally getting  serious  about  developing regulations  and                                                               
thus he again expected a  minor document addressing the issues of                                                               
the  1996 conference.    Mr. RaLonde  emphasized  that he  didn't                                                               
expect a 25-page rewrite of the regulations.                                                                                    
                                                                                                                                
MR. RaLONDE pointed  out that even now,  without new regulations,                                                               
the  original  regulations  provide   more  scrutiny  of  aquatic                                                               
farming  than  nearly  any  other marine  activity.    From  that                                                               
rewrite comes that significant process  that "we" think is on the                                                               
fast  track.    He  noted  that he  was  informed  of  the  draft                                                               
regulations when he was going out  the door for the holidays.  At                                                               
the  first  hearing,  held  on  December  8,  hardly  anyone  was                                                               
prepared to comment.                                                                                                            
                                                                                                                                
CHAIR McGUIRE noted  that the committee packet  includes a letter                                                               
from Mr. RaLonde.                                                                                                               
                                                                                                                                
Number 2033                                                                                                                     
                                                                                                                                
DENNIS WATSON, Mayor, City of  Craig, focused on the process that                                                               
has  taken  place  with  these  regulations.    He  informed  the                                                               
committee that  he has been mayor  for six terms and  has been to                                                               
many legislative  and departmental  hearings and has  seen "every                                                               
screw up possible."  Mr. Watson  said that he has been locked out                                                               
and had meetings that didn't exist  or had changes to the agenda.                                                               
Therefore,  he understood  the frustration  with this  situation.                                                               
"But the  legislature has to take  a good look at  itself, first,                                                               
before it  starts pointing the  finger at anybody else  about ...                                                               
the  way  hearings are  operated,"  he  said.   He  informed  the                                                               
committee that  he has  sat in hours  of legislative  hearings on                                                               
matters  that are  important to  his community  and has  not been                                                               
able to testify.  Therefore, he  indicated the need to review the                                                               
entire process.   Mr. Watson acknowledged that there is  a lot of                                                               
disagreement  about  this  issue  from both  sides  and  thus  he                                                               
indicated the need  to move this issue into a  situation in which                                                               
this could  be discussed.   Furthermore, those issues  that can't                                                               
be agreed  upon are in  the court  system and perhaps  the courts                                                               
will  provide   some  direction.    In   conclusion,  Mr.  Watson                                                               
expressed the  hope that if  [the committee] is going  to address                                                               
the process, then he hoped  that it would begin [with legislative                                                               
meetings] and move down through the departments.                                                                                
                                                                                                                                
REPRESENTATIVE JAMES  said that people  from all over  the nation                                                               
have  reported to  her that  Alaska has  the best  public process                                                               
system.  Although Alaska's system  is flawed as is the democratic                                                               
[system] in the  U.S., it is the  best system in the  world.  She                                                               
recognized that there  will always be times when  it just doesn't                                                               
work and  thus the  legislature and  the administration  needs to                                                               
work harder to do a better job.                                                                                                 
                                                                                                                                
MR. WATSON agreed.                                                                                                              
                                                                                                                                
REPRESENTATIVE JAMES  commented that the  goal is to  continue to                                                               
improve.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE  pointed out that the  point of this hearing  is to                                                               
learn  and find  out  the  concerns of  the  public  and how  the                                                               
department  might  better  address  those concerns.    She  said,                                                               
"That's  not to  say that  the legislature  doesn't have  its own                                                               
problems."                                                                                                                      
                                                                                                                                
Number 1878                                                                                                                     
                                                                                                                                
BOB  HARTLEY, Homer  Oyster Grower,  addressed the  process.   He                                                               
informed the  committee that Kachemak  Bay is a  critical habitat                                                               
area.   In  1999  three farmers  submitted  applications for  on-                                                               
bottom aquaculture  in Kachemak  Bay.  The  regulations regarding                                                               
critical habitat areas have no  specific prohibition to on-bottom                                                               
aquaculture, which was permitted in  Kachemak Bay.  A hearing was                                                               
held [on  on-bottom aquaculture in  Kachemak Bay]  in conjunction                                                               
with the  jet ski issue.   There was also literature  research by                                                               
someone in  the Habitat  Division, ADF&G,  in order  to determine                                                               
what the effects  of on-bottom aquaculture in Kachemak  Bay.  Mr.                                                               
Hartley noted  that he  requested that paper,  which had  no firm                                                               
conclusions on the effect.   Then the department decided that on-                                                               
bottom  aquaculture in  Kachemak Bay  would be  illegal and  thus                                                               
would amend the regulations.   The department provided a few days                                                               
for comment.   Again, this occurred during the  holidays at which                                                               
time  he   also  received   notification  and   a  copy   of  the                                                               
regulations.  Mr. Hartley informed  the committee, "After that we                                                               
found  out that  unilaterally  the Director  of  Habitat had  put                                                               
Kachemak Bay, in fact, all  critical habitat areas, game refuges,                                                               
and other  things off  limits to  mariculture, stating  that they                                                               
were  incompatible  with the  goals  and  objectives of  critical                                                               
habitat areas."   Therefore, Mr. Hartley related  his belief that                                                               
the present farmers  in Kachemak Bay face a good  chance of being                                                               
denied the  ability to renew their  permits.  He said,  "This was                                                               
done without  any public  hearing or  any notification  to anyone                                                               
and it  was done  through the  Department of  Natural Resources."                                                               
The Department of Natural Resources  and ADF&G are co-managers of                                                               
critical habitat  areas.  Therefore,  ADF&G directed DNR  that it                                                               
would not  accept anymore applications  for aquatic farms  in any                                                               
critical habitat areas.  He  concluded by saying that the farmers                                                               
in Kachemak Bay don't know what their status will be.                                                                           
                                                                                                                                
Number 1714                                                                                                                     
                                                                                                                                
RODGER  PAINTER,   Vice  President,  Alaskan   Shellfish  Growers                                                               
Association (ASGA), informed the committee  that it should have a                                                               
letter [from the association] that  covers what it believes to be                                                               
the  flaws in  the public  involvement process.   He  pointed out                                                               
that although  aquatic farmers were  notified of  the regulations                                                               
via mail, the notification was  sent during the holiday rush when                                                               
the  post   office  is  extremely   busy.     Furthermore,  these                                                               
notifications  are being  sent to  people that  are in  extremely                                                               
remote locations in  Alaska, some of which may  only receive mail                                                               
once  a week  and this  doesn't  take into  account the  problems                                                               
weather can create.  Mr. Painter  said that he spoke with several                                                               
farmers who received  the notifications after the  hearings.  Mr.                                                               
Painter related  his belief that  there are  significant problems                                                               
with  the  notification  process.     Mr.  Painter  provided  the                                                               
committee with a  chronology of the efforts  of [aquatic farmers]                                                               
over  the last  10 years  to convince  the department  to develop                                                               
regulations  and policies  regarding on-bottom  aquaculture.   He                                                               
said  this   chronology  will  highlight   how  many   times  the                                                               
department  has made  promises to  the  industry as  well as  the                                                               
legislature and has not followed through.                                                                                       
                                                                                                                                
MR. PAINTER  directed the committee's  attention to an  e-mail he                                                               
wrote to Ken Imamura, which  is included in the committee packet.                                                               
From Mr.  Imamura's e-mail he  read the following:   "Comments on                                                               
the draft regulations should be  submitted by February 12 and the                                                               
final proposed wording forwarded to  the Department of Law by the                                                               
following  Monday, February  19."   Mr.  Painter  alluded to  the                                                               
notion that  the aforementioned timeframe doesn't  allow for much                                                               
consideration of the public comments.   Furthermore, he estimated                                                               
that it  would take at  least a week  for [ADF&G] to  comply with                                                               
APA  requirements, which  wouldn't allow  time to  change even  a                                                               
word  in the  proposed regulations.    Mr. Painter  said that  he                                                               
would  like to  provide the  committee with  draft comments  from                                                               
ASGA  regarding  the  proposed  regulations  in  order  that  the                                                               
committee  could  see why  ASGA  is  concerned.   Clearly,  these                                                               
regulations  will  stop any  future  farms  and place  all  those                                                               
currently  in   the  [on-bottom  mariculture]  business   out  of                                                               
business.  He pointed out  that these regulations are retroactive                                                               
and  don't  contain any  grandfather  provisions.   When  current                                                               
shellfish growers' permits are renewed,  the new regulations will                                                               
be applied;   these  are regulations  that the  shellfish growers                                                               
know they can't comply with.                                                                                                    
                                                                                                                                
MR. PAINTER noted that he has  been trying to work with the state                                                               
in  order   to  provide   additional  time   to  work   on  these                                                               
regulations.   He also  noted that  he has  had contact  with Bob                                                               
Loeffler,  Director,   Division  of   Mining,  Land   and  Water,                                                               
Department  of  Natural  Resources.   Mr.  Loeffler  assured  Mr.                                                               
Painter  that  the department  [DNR]  is  willing to  extend  the                                                               
application process for as long as  it takes to ensure that there                                                               
are  workable regulations.   Mr.  Painter informed  the committee                                                               
that  [ASGA] is,  at this  point, interested  in at  least a  two                                                               
month  extension  for the  time  allotted  for working  on  these                                                               
regulations.   Furthermore,  [ASGA]  is  interested in  obtaining                                                               
some assurances  from ADF&G that  it will engage in  a meaningful                                                               
dialogue with the public over these proposed regulations.                                                                       
                                                                                                                                
MR. PAINTER then turned to the  response he has received from the                                                               
Department of Law regarding the  efforts to address the substance                                                               
of  the regulations.   Mr.  Painter said  that Shannon  O'Fallon,                                                               
Assistant Attorney  General, Department  of Law, said  that ADF&G                                                               
couldn't engage  in any meaningful dialogue  on these regulations                                                               
during the public  comment period due to constraints  of the APA.                                                               
He expressed his surprise with  Ms. O'Fallon's comment because in                                                               
his  experience with  departments  over the  past  20 years,  the                                                               
departments  have  always  been  willing to  engage  in  dialogue                                                               
during the  public process.   Furthermore, he understood  that to                                                               
be the very  purpose of this process:  to  have a public dialogue                                                               
over proposed rules.   Therefore, Mr. Painter  asked Ms. O'Fallon                                                               
to  direct him  to  specific  provisions in  the  APA that  would                                                               
constrain the  agency.  Ms.  O'Fallon clarified that it  wasn't a                                                               
specific  provision in  the  APA but  rather  the [Department  of                                                               
Law's]  interpretation  of the  APA.    Ms. O'Fallon  offered  to                                                               
arrange  conversation with  herself  and  the department's  chief                                                               
regulations specialist in  order to discuss the issue.   To date,                                                               
Mr. Painter had not heard from  Ms. O'Fallon.  In conclusion, Mr.                                                               
Painter  noted  his  appreciation  of ADF&G's  offer  to  have  a                                                               
stakeholder  panel  in  order to  initiate  dialogue  over  these                                                               
regulations.     However,   he   admitted   to  some   skepticism                                                               
considering the history of the situation.                                                                                       
                                                                                                                                
Number 1335                                                                                                                     
                                                                                                                                
REPRESENTATIVE HAYES  inquired as to  the number of  members ASGA                                                               
represents.                                                                                                                     
                                                                                                                                
MR. PAINTER estimated that there are 40 members.                                                                                
                                                                                                                                
REPRESENTATIVE HAYES  asked if there are  any competing interests                                                               
in this industry, between ASGA and any other group.                                                                             
                                                                                                                                
MR. PAINTER  answered, "In a  stakeholder process,  for instance,                                                               
we  would  envision  that there  would  be  commercial  fisherman                                                               
involved,  maybe other  users of  the marine  waterways, such  as                                                               
local  communities  or  subsistence  users  in  addition  to  the                                                               
farmers.  So, there would be some competing industries."                                                                        
                                                                                                                                
Number 1288                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES reminded  everyone that  a couple  of years                                                               
ago [the  legislature] passed  a negotiated  rule-making process.                                                               
Although she  agreed that public  hearings are not  dialogues but                                                               
rather  monologues,   the  negotiated  rule  making   allows  the                                                               
department  to   negotiate  with  the  stakeholders   before  the                                                               
regulations  are drafted  and that  doesn't comply  with the  APA                                                               
process after a draft has been  determined.  She pointed out that                                                               
over time  it has  been recognized  that writing  the regulations                                                               
from an administrative viewpoint doesn't  always get the job done                                                               
in  reality.   Furthermore, those  affected  need to  be able  to                                                               
contribute  [to the  process] and  that can  only occur,  per the                                                               
current APA  rules, prior to  the public process outlined  in the                                                               
APA.                                                                                                                            
                                                                                                                                
MR.  PAINTER informed  the committee  that he  had proposed  that                                                               
[ADF&G] engage  in a  negotiated rule-making  process.   In fact,                                                               
ASGA  worked very  hard with  ADF&G to  obtain a  $100,000 for  a                                                               
capital  improvement  project (CIP)  in  order  to develop  these                                                               
regulations.   The CIP mentions a  negotiated rule-making process                                                               
that ASGA  suggested.  Although  ASGA still likes  the negotiated                                                               
rule-making  process, it  is willing  to accept  ADF&G's proposed                                                               
process.                                                                                                                        
                                                                                                                                
Number 1185                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA  inquired  as  to what  happens  to  the                                                               
permits and the farms if there is a delay with the regulations.                                                                 
                                                                                                                                
MR.  PAINTER  pointed  out  that  most of  the  farms  have  been                                                               
operating without current operating  permits because ADF&G hasn't                                                               
been able  to address  these.   Therefore, the  operating permits                                                               
[of the  shellfish growers]  have been  extended.   He reiterated                                                               
that most permits have already lapsed.                                                                                          
                                                                                                                                
Number 1122                                                                                                                     
                                                                                                                                
SHANNON O'FALLON,  Assistant Attorney General,  Natural Resources                                                               
Section,  Civil  Division  (Juneau),  Department  of  Law,  first                                                               
addressed  Mr. Painter's  comments.   She affirmed  that she  did                                                               
have  a conversation  with Mr.  Painter several  weeks ago.   Ms.                                                               
O'Fallon said that during that  conversation she told Mr. Painter                                                               
that  it is  often common  for the  Department of  Law to  advise                                                               
agency  personnel  to not  engage  in  discussions regarding  the                                                               
particulars  of regulations  with individuals  that call  because                                                               
then the  problem of not everyone  in the public having  the same                                                               
access to the same information  arises.  Ms. O'Fallon stated that                                                               
she has advised ADF&G to take public comment as the APA allows.                                                                 
                                                                                                                                
CHAIR McGUIRE  turned to the  pending lawsuit and inquired  as to                                                               
Ms.  O'Fallon's opinion  regarding the  nature of  public comment                                                               
with a pending lawsuit.                                                                                                         
                                                                                                                                
MS. O'FALLON  answered, "As an  attorney that's  representing the                                                               
department in this litigation, I've  advised them to be extremely                                                               
careful  with statements  that they  make,  especially since  the                                                               
people that are  commenting on the regulations  are also involved                                                               
in  litigation."   Ms.  O'Fallon  said that  she  did promise  to                                                               
return Mr.  Painter's call and when  she attempted to do  so, the                                                               
number was  disconnected.  After  looking up his phone  number in                                                               
the phone book,  she left a message  for him to call  her back at                                                               
what she assumed was his home number.                                                                                           
                                                                                                                                
Number 0999                                                                                                                     
                                                                                                                                
CHAIR McGUIRE asked if Ms.  O'Fallon saw any problem with waiting                                                               
for  the  outcome  of  the litigation  prior  to  enacting  these                                                               
regulations.                                                                                                                    
                                                                                                                                
MS. O'FALLON  replied, "The  department is  in a  bit of  a catch                                                               
22."  She  explained that one of the issues  in the litigation is                                                               
that  the  appellants  allege  that   policies  that  weren't  in                                                               
regulation were  applied and thus  were in violation of  the APA.                                                               
However, there is  a DNR regulation that  requires an application                                                               
period from January 1 to the end  of April every other year.  She                                                               
said,  "We didn't  want  to  get into  a  position  where we  are                                                               
accepting applications  and having  to review  those applications                                                               
again without  the benefit  of regulations  to help  us implement                                                               
our policies."                                                                                                                  
                                                                                                                                
Number 0920                                                                                                                     
                                                                                                                                
RON LONG,  Quetekcak Shellfish  Hatchery, informed  the committee                                                               
that he is a  supplier of seed to most of  the farmers in Alaska.                                                               
Mr. Long  pointed out that there  are laws on the  books and thus                                                               
these   regulations   are    proposed   revisions   to   existing                                                               
regulations.   He  mentioned that  the  first he  heard of  these                                                               
revisions  was  from  the   legislative  information  officer  in                                                               
Seward.   Notice of the  proposed regulations had  been published                                                               
in the  Homer newspaper  and initially, the  only LIO  slated for                                                               
participation  was  the  Homer  office.     Although  this  is  a                                                               
statewide issue, he  related his belief that the  revision of the                                                               
regulations was  based on issues  specific to  on-bottom culture,                                                               
which would  involve Southeast Alaska.   Therefore, Mr.  Long was                                                               
puzzled as to the reasoning behind  having Homer as the only site                                                               
listed.     Upon  contacting  the  mariculture   coordinator  and                                                               
requesting the  inclusion of other  sites, the Homer  and Cordova                                                               
LIOs were  included for  the January  8 hearing.   He  noted that                                                               
there  were  other  communities  that wished  to  join  and  some                                                               
communities  were added  and others  were  not.   In his  limited                                                               
experience, Mr.  Long had seen LIOs  added 15 minutes prior  to a                                                               
hearing.   He  said,  "I think  the citation  given  was that  it                                                               
violated the Open  Meetings Act and that  also seemed incongruous                                                               
to  me."    Under  the  original  timeline,  the  comment  period                                                               
would've ended  on January  18.  He  informed the  committee that                                                               
there  was  a  legislative  audit that  was  conducted  regarding                                                               
[ADF&G's]  activities involving  mariculture  over  the past  few                                                               
years.  If the original  timeline had been followed, the findings                                                               
of the audit  wouldn't have been made public.   Therefore, it was                                                               
fortunate  that  the  department  postponed  the  timeline  until                                                               
February 12 so  that the audit findings could be  reviewed by the                                                               
farmers.    Mr. Long  said,  "So,  that's  a  step in  the  right                                                               
direction."                                                                                                                     
                                                                                                                                
MR. LONG related  his belief that there probably  wouldn't be any                                                               
"heartburn" in the industry if  this process is prolonged because                                                               
the industry  requested an  extension.  He  ventured to  say that                                                               
Mr.  Loeffler  would probably  agree  [with  an extension].    In                                                               
conclusion, Mr.  Long commented, "It's  really easy for  those of                                                               
us  in   the  industry  or   in  the  departments   charged  with                                                               
administering  the  public  trust  and  the  resource  to  become                                                               
focused and  narrow in our  attention and tends to  (indisc.) our                                                               
process.   And we tend to  exclude some of the  valuable comments                                                               
that Senator Taylor  alluded to that come from out  of the blue."                                                               
Therefore, Mr.  Long hoped that  the panel discussion  offered by                                                               
the department could be accepted as a good beginning.                                                                           
                                                                                                                                
Number 0691                                                                                                                     
                                                                                                                                
ARTHUR TILGNER, M.D., testified  via teleconference.  He informed                                                               
the committee that he is a  new entrant to the shellfish industry                                                               
in  Kachemak Bay.    He  noted his  amazement  with  the lack  of                                                               
dialogue  from   ADF&G.   Although after  hearing Ms.  O'Fallon's                                                               
comments  he could  understand  the  restrictions, he  maintained                                                               
that it has  been counterproductive to the process.   Dr. Tilgner                                                               
expressed  his  hope that  the  February  7  meeting will  be  an                                                               
opportunity to  begin some meaningful  dialogue, which  he deemed                                                               
to  be absolutely  essential to  the process.   Furthermore,  Dr.                                                               
Tilgner  hoped to  see a  commitment  to such  dialogue from  Mr.                                                               
Mecum as well as an inclusive stakeholder process.                                                                              
                                                                                                                                
Number 0587                                                                                                                     
                                                                                                                                
JIM REEVES, Attorney, testified  via teleconference.  He informed                                                               
the committee  that he  has been working  with those  in Kachemak                                                               
Bay.  In Mr. Reeves  experience with working with state agencies,                                                               
he  is  very  familiar  [with  situations  such  as  this].    He                                                               
explained that  legislators make  policy decisions and  pass laws                                                               
to express  those policies and  then the legislators rely  on the                                                               
agencies to  administer the laws.   Often, the  agencies disagree                                                               
with the legislators.  When  there is disagreement, sometimes the                                                               
agency  expresses  its  disagreement   with  the  legislature  by                                                               
denying applications  and fronting appeals.   Therefore, the next                                                               
step  would  be that  the  agency  could change  the  regulations                                                               
during  the pendency  of the  litigation  in order  to trump  the                                                               
legal process  and add another layer  to the legal dispute.   Mr.                                                               
Reeves  said, "On  behalf  of  all lawyers,  I  applaud what  the                                                               
department  is doing  here.   I  think it's  a great  idea to  be                                                               
changing  regulations  at  this  stage,  against  a  backdrop  of                                                               
controversy  when there  is  already plenty  of  guidance in  the                                                               
statute and the existing regulations  for the agencies to do what                                                               
they're supposed to do."                                                                                                        
                                                                                                                                
MR. MECUM  thanked the  committee for  hearing this  issue today.                                                               
He  noted  his  desire to  have  this  be  a  good process.    He                                                               
expressed the  hope that  the February 7,  2001, meeting  will go                                                               
towards fixing the easy parts  and clarifying the difficult parts                                                               
of this.  Mr. Mecum announced  that the February 7, 2001, meeting                                                               
will  be held  in  the  State Office  Building  in  Juneau.   The                                                               
meeting  has been  publicly noticed  and will  occur all  day and                                                               
there is  the opportunity for  public comment  and teleconference                                                               
before  and after,  he believed.    Furthermore, [ADF&G]  offices                                                               
throughout  the state  have been  set  up to  provide people  the                                                               
ability to  sit in  and listen  to the meeting.   In  response to                                                               
Chair McGuire, Mr.  Mecum said that the meeting has  not been set                                                               
up to  teleconference to all  the LIOs because there  was concern                                                               
regarding the legislature "trumping" the use of those offices.                                                                  
                                                                                                                                
Number 0299                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES  asked  if  Mr. Mecum  believes  the  panel                                                               
discussion is  a "stand-in"  for negotiated  rule making  or will                                                               
people  on  the   panel  be  chosen  because   they  support  the                                                               
department's position.  She clarified  that she was interested in                                                               
the  real purpose  of the  panel discussion  and the  anticipated                                                               
outcome.                                                                                                                        
                                                                                                                                
MR. MECUM  answered that  the panel  discussion was  something he                                                               
"dreamed up"  because he merely  wanted to hear the  problems and                                                               
the specific  reasoning that would  lead people to  conclude that                                                               
the industry  would dry up  due to  the regulations.   He pointed                                                               
out that  the three  members from the  industry could  be whoever                                                               
the  industry  wanted, which  he  said  would  be Mr.  Long,  Mr.                                                               
Painter, and Mr. RaLonde.                                                                                                       
                                                                                                                                
REPRESENTATIVE JAMES remarked that such  would lend itself to the                                                               
intent  of  a negotiated  rule-making  process.   She  noted  her                                                               
observation  that those  who administer  the law  and those  that                                                               
follow  the law  don't have  the same  interest.   Therefore, she                                                               
emphasized the  importance of listening  to those that  will have                                                               
to  implement   the  regulations  and  whose   business  will  be                                                               
impacted.   She  said,  "As a  state, our  obligation  is not  to                                                               
curtail  business but  to make  it happen  in an  environmentally                                                               
sound and  economic way  and that  should be our  goal on  all of                                                               
these regulations."                                                                                                             
                                                                                                                                
CHAIR McGUIRE inquired as to the department's plan.                                                                             
                                                                                                                                
MR.  MECUM said  that he  couldn't make  any commitments  without                                                               
consulting with  the Department  of Law,  DNR, and  the industry.                                                               
However, he  reiterated that he is  open to the suggestion  of an                                                               
extension.   The  decision  regarding whether  or  not to  extend                                                               
should be determined after the panel meeting.                                                                                   
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the Joint                                                               
Committee  on   Administrative  Regulation  Review   meeting  was                                                               
adjourned at 11:17 a.m.                                                                                                         

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