Legislature(2001 - 2002)
02/01/2001 09:43 AM Senate ARR
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT COMMITTEE ON
ADMINISTRATIVE REGULATION REVIEW
February 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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