SCS CSHB 264(STA): "An Act relating to negotiated regulation making; and providing for an effective date."
00SENATE CS FOR CS FOR HOUSE BILL NO. 264(STA) 01 "An Act relating to negotiated regulation making; and providing for an effective 02 date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 44.62 is amended by adding new sections to read: 05 Article 10. Negotiated Regulation Making. 06 Sec. 44.62.710. Purpose and applicability of AS 44.62.710 - 44.62.800. (a) 07 The purpose of AS 44.62.710 - 44.62.800 is to establish a framework for the conduct 08 of negotiated regulation making consistent with AS 44.62.010 - 44.62.320. Negotiated 09 regulation making is not a substitute for the requirements of AS 44.62.010 - 44.62.320 10 but may be used as a supplemental procedure to permit the direct participation of 11 affected interests in the development of new regulations or the amendment or repeal 12 of existing regulations. A consensus agreement reached by a negotiated regulation 13 making committee may be modified by an agency head as a result of the subsequent 14 regulation making process. AS 44.62.710 - 44.62.800 may not be construed as an
01 attempt to limit innovation and experimentation with the negotiated regulation making 02 process or to limit other means to obtain public participation in the regulation making 03 process. 04 (b) The provisions of AS 44.62.710 - 44.62.800 may be used by an agency 05 even if other provisions of this chapter do not apply to that agency. 06 Sec. 44.62.720. Determination of need for negotiated regulation making 07 committee. (a) In addition to the regulation adoption requirements under 08 AS 44.62.010 - 44.62.320, an agency head may determine that the use of a negotiated 09 regulation making committee to negotiate and develop a proposed regulation is in the 10 public interest. In making that determination, the agency head is advised to consider 11 whether 12 (1) there is a need for a regulation, including whether any legal action 13 is pending that might resolve the need; 14 (2) there are a limited number of identifiable interests that are held by 15 more than one person and that will be significantly affected by the regulation; 16 (3) there is a reasonable likelihood that a committee can be convened 17 with a balanced representation of persons who 18 (A) can adequately represent the interests identified under (2) 19 of this section; and 20 (B) are willing to negotiate in good faith to reach a consensus 21 on the proposed regulation; 22 (4) there is a reasonable likelihood that a committee will reach a 23 consensus on the proposed regulation within a fixed period of time; 24 (5) the negotiated regulation making procedure will not unreasonably 25 delay the adoption of the final regulation; 26 (6) the agency has adequate resources and is willing to commit those 27 resources, including technical assistance, to the committee; and 28 (7) the agency head, to the maximum extent possible consistent with 29 the legal or other obligations of the agency, will use the consensus of the committee 30 as the basis for the regulation proposed by the agency under AS 44.62.010 - 44.62.320. 31 (b) Upon determining that a negotiated regulation making committee will be
01 formed, an agency head shall notify the public so that interested persons can apply to 02 be appointed to the committee. 03 Sec. 44.62.730. Use of convener. (a) An agency head may use the services 04 of an impartial person as a convener to assist in making the determination of need 05 under AS 44.62.720 and to assist the agency to 06 (1) identify the persons who will be significantly affected by a 07 proposed regulation; and 08 (2) conduct discussions with affected persons on the issues of concern 09 and determine whether the establishment of a negotiated regulation making committee 10 is feasible and appropriate for the particular proposed regulation. 11 (b) A person acting as a convener may also be named as a facilitator under 12 AS 44.62.760. The convener shall report findings and make recommendations to the 13 agency. The report and recommendations of the convener shall be made available to 14 the public upon request. 15 Sec. 44.62.740. Establishment, time line, support, and termination of 16 committee. (a) The agency head may establish a negotiated regulation making 17 committee to assist in the formulation of a proposed regulation. The agency head 18 should strive to achieve and maintain throughout the negotiated regulation making 19 process the balanced committee representation described under AS 44.62.720(a)(3). 20 Members of the committee serve at the pleasure of the agency head. If a committee 21 member is unable to attend a meeting, the agency head may select a designee to serve 22 in that member's place for a meeting. 23 (b) Before notifying the public under AS 44.62.720(b), the agency head shall 24 establish a time line for the work of the committee. The time line must include a 25 completion date for the transmission to the agency of the report described in 26 AS 44.62.750(d) or (e). The agency shall provide the time line to persons who apply 27 for appointment to the committee. At its first meeting, the committee shall review the 28 time line and recommend to the agency head any revisions to the time line. The 29 agency head shall consider any recommendations and revise the time line if necessary 30 to further the purposes of the negotiated regulation making process. 31 (c) The agency head may expand the membership of the negotiated regulation
01 making committee if necessary to facilitate the workings of the committee. 02 (d) The agency shall make available administrative support to the negotiated 03 regulation making committee, including technical support, that the agency head 04 determines necessary. 05 (e) A negotiated regulation making committee terminates upon adoption under 06 AS 44.62.010 - 44.62.320 of the final regulation under consideration unless the agency 07 head specifies an earlier termination date. 08 Sec. 44.62.750. Committee duties, procedures, and report. (a) A negotiated 09 regulation making committee shall consider the matter proposed by the agency head 10 for consideration and shall attempt to reach consensus concerning a proposed 11 regulation and any other matter on which the agency head requests assistance and that 12 is relevant to the proposed regulation. 13 (b) The person representing the agency on a negotiated regulation making 14 committee shall participate in the deliberations of the committee with the same rights 15 and responsibilities of other members of the committee and is authorized to fully 16 represent the agency in the discussions and negotiations of the committee. 17 (c) An agency head may adopt procedures for the operation of the negotiated 18 regulation making committee. The agency head shall appoint the chair of the 19 committee. 20 (d) If a negotiated regulation making committee achieves consensus on a 21 proposed regulation on or before the completion date established under 22 AS 44.62.740(b), the committee shall transmit to the agency head that established the 23 committee a report containing the proposed regulation. 24 (e) If a negotiated regulation making committee does not reach a consensus 25 on the proposed regulation on or before the completion date established under 26 AS 44.62.740(b), the committee shall transmit to the agency head a report specifying 27 areas in which the committee reached consensus and the issues that remain unresolved. 28 The committee may include in the report other information, recommendations, or 29 materials that the committee considers appropriate. A member of the committee may 30 include as an addendum to the report additional information, recommendations, or 31 materials.
01 (f) AS 44.62.310 - 44.62.312 apply to meetings of a negotiated regulation 02 making committee. 03 Sec. 44.62.760. Facilitator selection, duties, and authority. (a) An agency 04 head may appoint a person who is impartial to serve as a facilitator for the negotiations 05 of a negotiated regulation making committee. A person designated to represent the 06 agency on substantive issues may not serve as facilitator. 07 (b) A facilitator appointed or selected under (a) of this section shall 08 (1) preside at the meetings of the committee in an impartial manner, 09 unless the agency head has designated another person as chair; 10 (2) impartially assist the members of the committee to conduct 11 discussions and negotiations and to achieve consensus; 12 (3) coordinate with the agency head regarding the management of 13 records of the committee; and 14 (4) perform other duties related to the negotiated regulation making 15 committee that are assigned by the agency head. 16 (c) A facilitator does not have decision-making authority for the committee. 17 Sec. 44.62.770. Employees, contractors, and funding. (a) An agency head 18 may appoint an agency employee or obtain the services of another state employee or 19 a private contractor to serve as a convener or facilitator for a negotiated regulation 20 making committee. 21 (b) Before appointing or selecting a convener under AS 44.62.730 or a 22 facilitator under AS 44.62.760, an agency head shall determine whether a person being 23 considered has a financial or other interest that would prevent the person from serving 24 in an impartial and independent manner. A person disqualified under this criterion 25 may not be considered further. 26 (c) A member of a negotiated regulation making committee shall disclose to 27 the agency and other members of the committee a grant, gift, or other financial benefit 28 that exceeds $150 and that has been accepted by the disclosing member to finance the 29 disclosing member's participation on the negotiated regulation making committee. 30 Sec. 44.62.780. Judicial review. An agency action relating to establishing, 31 assisting, or terminating a negotiated regulation making committee under AS 44.62.710
01 - 44.62.800 is not subject to judicial review. Nothing in this section bars judicial 02 review if the judicial review is otherwise provided by law. A regulation that is the 03 product of negotiated regulation making and is later subject to judicial review may not 04 be given greater deference by a court for that reason than a regulation that is not the 05 product of negotiated regulation making. 06 Sec. 44.62.790. Relationship to other requirements. The negotiated 07 regulation making authorized by AS 44.62.710 - 44.62.800 is in addition to the 08 procedures required under AS 44.62.010 - 44.62.320 for adopting, amending, or 09 repealing regulations, and, if an agency head decides to use negotiated regulation 10 making, the negotiated regulation making shall, where possible, occur before the 11 procedures under AS 44.62.010 - 44.62.320 begin. 12 Sec. 44.62.795. Confidentiality of certain records and documents. 13 Notwithstanding AS 09.25.100 - 09.25.220, records from private persons that are 14 requested or used by a negotiated regulation making committee and working 15 documents prepared by the committee that analyze or incorporate information from the 16 records shall be kept confidential if the records or working documents contain 17 proprietary information and the owner of the records or working documents requests 18 that the records or working documents be kept confidential. 19 Sec. 44.62.800. Definitions. In AS 44.62.710 - 44.62.800, 20 (1) "agency" means a department, an institution, or a division or other 21 administrative unit of the executive branch of state government authorized or required 22 by law to make regulations, except that "agency" does not include 23 (A) a board; a commission; a council, except the Alaska Coastal 24 Policy Council established in AS 44.19.155; an authority; or a public 25 corporation of the executive branch of state government authorized or required 26 by law to make regulations; or 27 (B) the Department of Corrections; 28 (2) "agency head" means 29 (A) the commissioner or other head of an agency who has the 30 authority to adopt regulations for the agency; or 31 (B) for the Alaska Coastal Policy Council established in
01 AS 44.19.155, the co-chair of the council designated under AS 44.19.155(c) 02 from the members listed in AS 44.19.155(a)(2); 03 (3) "consensus" means unanimous concurrence among the interests 04 represented on a negotiated regulation making committee; 05 (4) "convener" means a person who is impartial and performs the 06 services identified under AS 44.62.730 for an agency; 07 (5) "facilitator" means a person who is impartial and performs the 08 services identified under AS 44.62.760(b) for a negotiated regulation making 09 committee; 10 (6) "negotiated regulation making" means regulation making through 11 the use of a negotiated regulation making committee; 12 (7) "negotiated regulation making committee" means an advisory 13 committee to consider and discuss issues for the purpose of reaching a consensus in 14 the development of a proposed regulation; 15 (8) "person" has the meaning given in AS 01.10.060, and expressly 16 includes a public organization of any character; 17 (9) "regulation" has the meaning given in AS 44.62.640 and includes 18 the amendment or repeal of a regulation. 19 * Sec. 2. AS 09.65 is amended by adding a new section to read: 20 Sec. 09.65.235. Immunity for negotiated regulation making committee and 21 its members. A civil action for damages or costs may not be brought against a 22 negotiated regulation making committee established under AS 44.62.710 - 44.62.800 23 or any of its members for an act or omission occurring in the course and scope of the 24 official duties of the committee under this chapter. 25 * Sec. 3. AS 36.30.850(b) is amended by adding a new paragraph to read: 26 (38) contracts for a convener under AS 44.62.730 or for a facilitator 27 under AS 44.62.760 related to a negotiated regulation making process under 28 AS 44.62.710 - 44.62.800. 29 * Sec. 4. AS 39.25.110 is amended by adding a new paragraph to read: 30 (33) a person employed as a convener under AS 44.62.730 or as a 31 facilitator under AS 44.62.760 related to a negotiated regulation making process under
01 AS 44.62.710 - 44.62.800. 02 * Sec. 5. AS 39.52.960(4) is amended to read: 03 (4) "board or commission" means a board, commission, authority, or 04 board of directors of a public or quasi-public corporation, established by statute in the 05 executive branch, but excluding the Alaska Railroad and members of a negotiated 06 regulation making committee under AS 44.62.710 - 44.62.800 ; 07 * Sec. 6. AS 39.52.960(4) is amended to read: 08 (4) "board or commission" means a board, commission, authority, or 09 board of directors of a public or quasi-public corporation, established by statute in the 10 executive branch, but excluding the Alaska Railroad [AND MEMBERS OF A 11 NEGOTIATED REGULATION MAKING COMMITTEE UNDER AS 44.62.710 - 12 44.62.800]; 13 * Sec. 7. AS 09.65.235; AS 36.30.850(b)(38); AS 39.25.110(33); AS 44.62.710, 44.62.720, 14 44.62.730, 44.62.740, 44.62.750, 44.62.760, 44.62.770, 44.62.780, 44.62.790, 44.62.795, and 15 44.62.800 are repealed July 1, 2003. 16 * Sec. 8. Sections 1 - 5 and 7 of this Act take effect immediately under AS 01.10.070(c). 17 * Sec. 9. Section 6 of this Act takes effect July 1, 2003.