Legislature(2017 - 2018)HOUSE FINANCE 519
02/19/2018 01:30 PM FINANCE
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HOUSE BILL NO. 197 "An Act relating to the duties of the commissioner of natural resources; relating to agriculture; and relating to community seed libraries." 2:03:28 PM REPRESENTATIVE JENNIFER JOHNSTON, SPONSOR, provided an explanation of the bill: Mr. Chairman and members of the Finance committee thank you for taking the time in your busy schedule to hear HB 197, a bill relating to Community Seed Libraries. This bill came from members of my community, as a way to legalize the sharing of small amounts of seeds. Currently, a seed cannot be sold, shared, or exchanged without going through costly testing and labeling. Seed sharing and libraries have the potential to contribute significant value to the health and heritage in our communities by providing a place to share regionally-adapted and heirloom seeds as an alternative to outside genetically modified seeds, and will help to increase biodiversity and plant resilience in our state. Seed libraries have been sprouting up throughout Alaska and this bill will allow them to operate legally without burdensome and unnecessary government regulation. This bill will help grow an organic sense of community and increase Alaskan food security. ELIZABETH REXFORD, STAFF, REPRESENTATIVE JENNIFER JOHNSTON, read from prepared remarks: Thank you, chairmen and members of the house finance committee, for hearing HB 197. HB 197 reduces onerous labeling and testing regulations for small batches of noncommercial seeds. Currently, all seeds in Alaska fall under commercial regulations, including the seeds that are traded amongst friends or saved from the prior year's harvest. This bill will change this, allowing the Alaskan gardening and farming communities the opportunity to continue expanding seed sharing without breaking the law. The new labeling guidelines would require 5 sections: • the seeds' species and variety, • name and address of seed library • year the seed was packaged • the weight of the packaged contents • and the statement, "Not authorized for commercial use and not classified, graded, or inspected by the State of Alaska." While this may seem like overkill for a small local seed exchange, five requirements for labeling is less than the two pages of requirements we currently have. Because of the way the current statute is written, any seed that is used at any capacity in the state has to go through the commercial process of extensive testing, germinating percentages and labeling. In the scale of things, the new requirements would be pretty limited. This bill also broadens the duties of the DNR Commissioner to allow the department to administer and promote the creation of community seed libraries. A community seed library is not currently defined in statute, so this bill carves out a space in statute and says that seed libraries can exist and provides guidelines. Alaska has been experiencing a severe food security challenge, where residents now spend close to $2 billion each year buying food produced from outside of the state. Community seed libraries encourage self-sufficiency and preserve agricultural knowledge. Now that we have planted the seed, please join us in supporting HB 197. Rob Carter, whom is the state's plant materials center manager, is on the line to answer any questions. Thank you for taking the time to hear the bill. 2:06:39 PM Representative Kawasaki stated there were letters in members' packets from individuals who were currently part of the seed library in Alaska. He asked if the bill sponsor was saying the individuals were running illegal operations. Representative Johnston answered "quietly." The bill would help the individuals do the work on a more orderly and legal basis. Representative Kawasaki stated that based on conversations with individuals with seed libraries, the bill looked onerous for people with noncommercial seed libraries. He asked for detail. Representative Johnston deferred the question to the Department of Natural Resources (DNR). Representative Kawasaki repeated his question. He was trying to determine whether it was not acceptable for individuals to operate seed libraries without enabling legislation. ROB CARTER, MANAGER, PLANT MATERIALS CENTER, DIVISION OF AGRICULTURE, DEPARTMENT OF NATURAL RESOURCES (via teleconference), answered that current regulations prohibited all seed sales and transportation being offered for sale in Alaska. The operations had to meet a very defined set of testing and labeling requirements. Currently all of the individuals operating seed libraries, including anyone sharing or transporting seed, for personal noncommercial use, were breaking current regulations. He explained that if DNR went to a seed library to issue a notice of violation or an order and the seed library failed to follow through, under AS 03.05.090 a person violating one of the provisions was guilty of a Class A misdemeanor and a fine of up to $500 for each violation. He noted violations could get expensive if a library contained a couple hundred packets of seed. Representative Kawasaki asked if the requirements were statutory or regulatory. 2:10:58 PM Mr. Carter responded that the requirement was currently in regulation under the duties of the commissioner. Statute currently allowed DNR's Division of Agriculture to regulate the sale, transport, importation, or exportation of seed within the state. Representative Kawasaki remarked on current regulation that gave DNR and the commissioner the ability to regulate. He asked if it was possible to amend regulation to allow DNR to regulate seed libraries or transfers of seed grown and traded in the state. Mr. Carter replied it could be effective to change regulation to allow for personal use, noncommercial seed distributions or transportations around the state. He observed that regulations could be changed much easier than statute. To protect the industry in perpetuity having the requirement in statute was beneficial because of the protection it would provide to Alaska's small and larger personal use seed exchanges or transportations. Currently it was not in the best interest of the division or the state for food security and biodiversity reasons for DNR to issue notices of violation for non-commercial seed use, but that was because it was the way he operated the division. Knowing that regulations could be changed by whoever was sitting in his position (with a lengthy process of public scoping and through the Department of Law (DOL)), he believed for long-term food security and sustainability, establishing statute would protect seed libraries and noncommercial seed trading. 2:13:54 PM Representative Grenn pointed to page 3 of the legislation pertaining to community seed libraries [subsection (c) at the bottom of the page] "Seed given, exchanged, or offered for giving or exchange under (b) of this section must be packaged for sale and labeled." He noted the subsection listed several things that needed to be on the label. He asked for verification that someone still needed to label their seeds if they were giving them away versus selling them. Representative Johnston replied, "currently yes." She noted that the labeling could be merely having a label on the table or next to the seeds suggesting what the seeds were; it did not have to be for each individual packaging. Representative Grenn asked for verification that the requirement to package and label was not per package. Representative Johnston replied in the affirmative. Representative Grenn referenced page 4 of the bill and asked why there was a one-pound limitation. Representative Johnston deferred to DNR. Mr. Carter replied that the issue had been discussed at length - it had initially been a smaller weight. He reported that the industry had reached out and communicated that the weight was too small. He did not believe it was a benefit or hurdle for anyone sharing seed. He used cauliflower as an example and specified there were 70,000 seeds per pound. He believed it was plenty for noncommercial use. He thought that if people started noncommercial sharing of cereal grains or larger seed, it may become a burden, but he believed the weight limit in the bill was per package. He elaborated that a person could easily write "not authorized for commercial use in the state of Alaska" on the packages and could follow the other labeling requirements to overcome the hurdle. Representative Grenn asked for verification that he would need five separate, one-pound bags if he wanted five pounds of one type of seed. He thought a limitation sounded strange for community sharing. Mr. Carter answered there was a reasonable way to work around the issue. The intent behind the bill was to make sure the use was noncommercial. He elaborated that seed laws existed to protect individuals who based their livelihood on the quality of the seed. Federal and state seed laws regulated the quality of seeds farmers needed or purchased because their business operations depended on it - that was where labeling requirements for germination and purity came into play as a protection for farmers. There were many workarounds to ensure individuals sharing seeds could do so easily. 2:18:38 PM Representative Guttenberg referenced two emails in members' packets sent to his staff the previous year [email of opposition from P.S. Holloway sent on April 7, 2017 (copy on file)]. He detailed that the author of the email, Dr. Holloway was the retired director of the University of Alaska experimental farm. He emphasized that no one had been more active in promoting agriculture in Alaska than Dr. Holloway. He explained that in addition to her cynicism, Dr. Holloway did not get the bill. He detailed that Dr. Holloway was in the middle of the commercial and free trade of seeds and plants and was still active at the University's experimental farm. He asked if the bill addressed the concerns. He referred to DNR's zero fiscal note. He commented that DNR's budget was strapped and he questioned where the money would come from to oversee the changes made by the bill. Representative Johnston answered that the email had been sent on April 7 . The concerns had been addressed by the House Resources Committee in an amendment process on April 28 . Representative Guttenberg referenced the one-pound limitation and the fact that noncommercial seed libraries would still be regulated. He mentioned the ability for people to swap seeds. He thought it appeared the bill did a substantial amount without a fiscal note. He saw the bill as a tamping down of people's ability to sell seeds at a farmer's market or other. He stressed the state did not have enough agriculture at present to dictate that people could not experiment and if they did experiment they had to label and have accurate accounting for what they were doing. He was concerned the bill would do the opposite of enhancing. 2:22:16 PM Representative Johnston replied that Alaska would be the fifth or sixth state to do the work. She stated that it appeared to be making things more difficult; however, it would bring the business of seed exchange into a place of respect and biodiversity, where it would be possible to buy seeds from local people at a farmer's market. She stated that while it seemed cumbersome to some, she believed it would be better to legitimize the activity by passing statute. Representative Guttenberg asked how DNR expected to implement the bill without a fiscal note. He stated that normally there was a fiscal note when writing regulation was required. 2:23:49 PM Mr. Carter replied that nowhere in the bill was there language specifying someone "shall" do something, whereas, there were numerous provisions specifying that the department "may" do something if it chose. The division was currently reviewing its seed regulations. If the statute moved forward during its next regulation process, DNR would make sure it addressed the community seed libraries and the personal noncommercial transfer of seed within the regulations. He noted that DNR's current purview was commercial only. He cited the department's belief it would not have to regulate the issue as its reason for the zero fiscal note. He elaborated there would not be a need for another staff. There may be some education and the bill provided the opportunity for DNR to create an additional webpage; however, the department already had a website. He did not believe the additional work in the bill would place an undue burden on the division or department. At present, if the bill passed, DNR would not have to police the noncommercial seed sharing activities; it would reduce any work hours, trips, or inspections the department would currently have to do if someone brought noncommercial use to its attention via a complaint. Representative Guttenberg believed there were too many contradictions associated with the bill. Representative Wilson asked if Mr. Carter had participated in the House Resources Committee meetings the past April. Mr. Carter answered in the affirmative. Representative Wilson asked if Mr. Carter had told the House Resources Committee that the issue was in regulation and DNR could choose to make changes. Mr. Carter replied that he believed so. He believed the concerns could be addressed through a regulation change. He was uncertain it would provide longevity and protection to the noncommercial seed sharing activities in Alaska, but it very well could be done. Representative Wilson asked why the department had not done anything in regulation. She surmised that the department could have elected to implement regulation and the legislature could have changed it via statute if it did not like the outcome. 2:27:00 PM Mr. Carter replied that the duties of the commissioner of DNR under AS 03.05.010 pertained to the development of a commercial agriculture industry. The department did not see the noncommercial seed sharing activities as commercial; therefore, it did not see the noncommercial activity as falling under its purview at present. Representative Wilson stated that Mr. Carter had testified that DNR wrote regulations and could change them if it chose to. She thought he was now saying that DNR had no legal authority to write regulations for noncommercial seed sales or trade. Mr. Carter confirmed that DNR did not have the purview of noncommercial use, but it did have purview to protect and enhance an agricultural industry in the state. The regulations that were likely last updated in the 1980s oversaw and regulated all seed throughout the state, which included personal use. Representative Wilson asked how DNR was enhancing if it was not allowing. Mr. Carter clarified the department was enhancing commercial industry. He detailed the department was providing seed testing and sampling and was regulating the control, transport, and seeds being offered for sale to the commercial industry within the state. The department was not enhancing noncommercial use at present. Representative Wilson pointed to page 5, lines 18, 19, 23, and 24 pertaining to the duties of the department with respect to agriculture. She asked if the language read "the Department of Natural Resources shall not control and regulate the entry and transportation of noncommercial seeds, plants, and other horticulture products," whether it would take care of the problem that DNR would not be regulating the noncommercial industry. Mr. Carter asked for clarification on the line numbers. Representative Wilson replied that page 5, lines 18 and 19 designated that DNR shall do certain things. Lines 23 and 24 currently read "control and regulate the entry and transportation of seeds, plants, and other horticulture products." She believed Mr. Carter was saying that the language pertained to commercial activity only and that DNR should not be regulating noncommercial. She asked if the legislature wanted to ensure DNR was not regulating noncommercial activity, it should be clarified in statute. Mr. Carter believed it would be a way to address noncommercial seed distribution within the state. 2:31:02 PM Representative Johnston thought Representative Wilson had an excellent point. The mission of the division was a commercial one. She spoke to the discussion about the weight limit discussion (i.e. one to five pounds) and reasoned it brought up what constituted commercial versus noncommercial. She believed it was important to keep in mind the intent of the division to protect commercial while not standing in the way of the exchanges. Co-Chair Seaton pointed out that one of DNR's duties listed on page 5, line 25, was to control and eradicate pests injurious to plants. He believed allowing individuals to import anything they wanted would be in opposition to efforts to control invasive plants. He thought getting too broad would create problems. He noted that Section 4 (page 3) was new to the legislation and included language about giving or exchanging seeds. He pointed language on lines 23 and 24 "...from a plant grown (1) outside the state, and imported into the state in compliance with AS 03.05.010(a)(5)." He remarked that the bill would change language on page 2 from "into" the state, to "in" the state. He wondered why the provision on page 3 would be necessary, which would allow for importation from outside the state, if page 2 specified the bill applied only to seed from within the state. Representative Johnston answered that House Resources Committee had discussed there were occasional chances for seed libraries to exchange seeds with commercial entities. She did not want to prevent seeds from being available to seed libraries. 2:34:17 PM Mr. Carter agreed. For example, if he placed a seed order for his garden and ordered one ounce of broccoli seed (any remaining seed would have met the requirements within AS 03.05.010(a)(5)) he could leave the seed in its commercial package or repackage it and label it accordingly and could noncommercially share it with individuals in his community or in other regions around the state. There were numerous individuals throughout Alaska who had relatives outside the state who bought and shared commercial seeds that met DNR's current regulations to contain no noxious weeds and have high purity and good germination. There were also numerous crop varieties that were not great producers within the state (e.g. some could not be overwintered); therefore, as long as the materials met the state's labeling requirements in their original container, the seed could be disseminated in Alaska. Co-Chair Seaton referenced page 2, line 12 that read "regulate and control the entry in the state" instead of the previous "regulate and control entry into the state." He asked if the language change did not change the regulation of importing seed or distributing within the state. Mr. Carter agreed. He viewed it as a language change that would still allow DNR to regulate seed being brought into the state to ensure it met the needs of commercial users and to prevent invasive species from being brought in. The language would still allow seeds that could not be viably produced in Alaska to be noncommercially traded or distributed around the state. 2:37:35 PM Representative Pruitt stated that his concerns about ensuring the state maintained its control over any type of invasive or noxious seeds. He pointed to language intending to protect from the issue on page 4 under applicability of other laws. He noted the language specified that nothing authorized a person to possess or exchange [invasive or toxic] seeds. He asked how to maintain the control. He had no problem with individuals sharing heirloom or other seeds with no issues; however, he reasoned that individuals may think that something looked pretty or had a value, but ultimately it could have a negative impact on the [non- native] environment it was brought to. He used Hawaii as an example and noted that much of the plants on the islands were invasive. He asked how to maintain controls through the new exchange even if there was good intention involved. Mr. Carter remarked on the importance of the question about not allowing invasives to include non-native species into the state. He referred to earlier testimony that people were going under the radar. He believed the intent of the language to provide some guidelines to follow for noncommercial use, gave the state the ability to try to cut off any invasive species from being brought into the state. He remarked on the difficulty of the task because vehicles, planes, boats, lawn mowers from out-of-state, and other could have seeds attached when brought in. He referenced Alaska's large size and remoteness. The department would continue to utilize its current invasive and restrictive noxious weed list, which it planned on enhancing to include other species of concern it was hearing about from other state and federal agencies. The goal was to stop the seeds preferably before they reached the state's border or if they made it into the state and were brought to the department's attention. Representative Pruitt asked if there was language to include that would enable DNR to shut down a seed library or act to prevent someone from bringing in invasive species or other. He did not see specific language in the bill and asked if the department was able to take action. 2:42:07 PM Mr. Carter answered that DNR would take all of the assistance it could get controlling non-native invasive species in Alaska. He referenced page 4, lines 16 pertaining to the applicability of other laws, which did not allow a person to violate the PVP Act [Plant Variety Protection Act], distribute or exchange seeds classified as controlled substances, and anything considered noxious, invasive, or toxic under AS 03 or a regulation adopted under those chapters. He believed the bill left all tools the department currently had in place to go in, issue notice of violations and stop sales to have the seeds destroyed in a manner at the discretion of the director of the Division of Agriculture. He did not believe the bill hindered the department's ability to continue to control the entry into the state of invasive or non-native plant species of concern. Co-Chair Foster OPENED and CLOSED public testimony. Representative Wilson was disturbed the bill had been around since the past May. She stated the Division of Agriculture was supposed to be helping agriculture. She referenced a letter from a person in Homer related to growing pumpkins. She hoped there would be more discussion about how the bill was enhancing agriculture. She believed there was currently a huge loss occurring. Co-Chair Foster asked members to provide any amendments by the coming Wednesday. HB 197 was HEARD and HELD in committee for further consideration.