Legislature(2003 - 2004)
02/27/2004 01:20 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 424 - REGULATION REVIEW Number 0206 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 424, "An Act relating to review of regulations under the Administrative Procedure Act by the Legislative Affairs Agency; and providing for an effective date." [Members' packets contained a proposed committee substitute (CS) for HB 424, Version 23-LS0732\I, Cook, 2/20/04] CHAIR McGUIRE informed the committee that a [new] CS for HB 424 is forthcoming. Number 0262 BARBARA COTTING, Staff to Representative Jim Holm, Alaska State Legislature, sponsor, characterized HB 424 as a work in progress. However, the intention is to place the concept before the committee today for review. She relayed that the sponsor does not want the committee to consider CSHB 424, Version 23- LS0732\I, Cook, 2/20/04, because the sponsor hopes to have a new CS and fiscal note for the committee's consideration early next week. MS. COTTING predicted that the committee would agree that common complaints from constituents are about regulations. House Bill 424 is one piece in solving the regulations puzzle, she explained, adding that the bill authorizes a formal of review of regulations by Legislative Legal and Research Services. She referred to a document in committee packets entitled "Steps in the Regulation Adoption Process," and explained that this review would come after the Department of Law opens the file [step 4] but before the agency publishes and distributes public notice, additional notice information, and regulations [step 5]. Under the current statute, only the attorney general formally reviews regulations. She pointed out that the attorney general's review comes late in the process, when public comment has already been closed, and after the review, the regulations are transmitted for the lieutenant governor's office and, at this point, the regulations are rarely changed. Under HB 424, the legislative attorneys who actually draft the legislation that authorizes the regulations would formally review those regulations promulgated from the legislation that the agency drafted. MS. COTTING relayed Representative Holm's sentiment that HB 424 should have a positive effect on Alaska's economy because the regulations will reflect a more cooperative effort between the administrative and legislative branches of government. The hope is that with this process, a more stable business environment will be created, perhaps even allowing the public to trust the government more than it does now. Number 0503 DAVID STANCLIFF, Staff to Senator Gene Therriault, Joint Committee on Administrative Regulation Review, Alaska State Legislature, informed the committee that one of his tasks this year is to make government work better and find ways in which to work cooperatively with the administration towards that goal. He informed the committee that from the 1960s to the 1970s, the number of bills introduced peaked at about 1,700. In the early 1990s, the number of bills introduced decreased to about 900 or so with approximately 300 bills becoming law. However, the situation with regulations is quite unlike that because there are some 40,000 regulations now. He pointed out that regulations have grown on an exponential curve. He highlighted that promulgating regulations creates increases in costs throughout government. Moreover, it's problematic for policy makers to find out the costs associated with a regulation that is promulgated. If one were to take the growth of regulations to a point 20 years in the future, it would make today's fiscal problems look tame, he predicted, and said that at some point, regulation growth has so advanced that the legislature's ability to deal with it is severely encumbered. MR. STANCLIFF opined that the Alaska State Constitution blesses the executive branch with a great deal of power. Furthermore, the legislature has delegated law-making power to the executive branch through "rule writing." There are two types of rules: those based on legislation, and those based on policy. "The executive [branch] is free because the legislature has granted the authority to actually draft laws in the form of rules," he pointed out. Number 0731 MR. STANCLIFF said that the legislature and the executive branch have another unique relationship in that the executive branch is very involved in the legislative process and many in the executive branch have free access to the legislative branch of government. However, the contrary isn't the case when one reviews what the legislature is able to do with regulations, Mr. Stancliff noted, adding that at one time, there was a statute that provided the legislature with the ability to annul regulations, but that statute was found to be unconstitutional. Furthermore, two ballot measures that would've allowed legislative involvement [in the regulations process] have failed to pass. MR. STANCLIFF pointed out that throughout the country, the history of administrative law is such that two troublesome areas are having to be addressed, and one such area is being addressed via this legislation. Several states have decided that perhaps there should be more of a partnership between the executive and legislative branches when dealing with regulations. For example, the legislative legal staff in Minnesota draft the regulations with the executive branch. However, the aforementioned ability will not be provided in Alaska unless the constitution is changed. Alaska has the ability, though, as does Colorado, to peak over the shoulder of the executive branch and offer an opinion when it looks as if what the legislature intended isn't happening. When the aforementioned nonbinding review occurs, those who write the regulations realize there is a higher bar and thus they write the regulations more carefully. MR. STANCLIFF said that although he didn't discuss the Alaska Public Offices Commission regulations that are now being reviewed at various levels within the legislature, he characterized it as a timely issue in highlighting the need for [the executive and legislative branches] to work in a more cooperative role. Although some have suggested that legislative staff could [review the regulations], he opined instead that Legislative Legal and Research Services staff need [to review the regulations] in order to obtain a quality of review similar to what the attorney general performs. The Legislative Legal and Research Services staff are intimately familiar with the intent and nuances through every committee meeting and every vote, he posited, because these folks are constantly in contact. He added that whenever the drafters have a problem with regard to how a proposed statute might dovetail with existing law, the [legislature] often invites them to discuss it with the attorney general in order to determine how to cooperatively draft better legislation. MR. STANCLIFF added, therefore, that the [legislature] would like to receive the same deference in order to minimize public conflict and mistakes, and ensure that the regulations which pass through the public comment period look the same when they are eventually put in place. Mr. Stancliff said that in conversations with the Department of Law, he'd discovered that somewhere around 25 percent of the regulations are sent back after going through the public process, which he interpreted to mean that the regulation that was finally adopted doesn't exactly match the regulation on which the public commented. However, he clarified that he isn't suggesting that all of those were major problems, because some are technical and grammatical corrections. Still, there are some that are troubling, which he believes will be the case with the APOC regulations. "The goal, here, is to work out of the 'Reg Review Committee,' both sides of the legislature; [the] Department of Law is working very cooperatively with us right now on this issue," he said. Number 1081 MR. STANCLIFF turned to the issue of cost. He suggested that the cost for a poorly written regulation is millions of dollars. Unfortunately, an entity impacted by [a poorly written regulation] cannot obtain resolution until the administrative process is exhausted. He informed the committee that he is tracking cases that have been open for 20 years. Therefore, a small investment by the legislature in a cooperative regulatory review process could result in huge returns in the private sector and reductions through efficiency in the government sector. Furthermore, he expressed hope that this would be part of a package brought forth to the public illustrating that the legislature wants government to work better. CHAIR McGUIRE mentioned that as the former chair of the Joint Committee on Administrative Regulation Review, she struggled with ways in which to address the same problem Mr. Stancliff has discussed. From the hearings on the legislation that she introduced, she recalled that [a cooperative approach to regulations] raises the level in drafting. The goal is to have legislators think more thoroughly when proposing legislation because frequently [the legislature] has failed to be as clear as it can when drafting. Furthermore, because of the weight given to the executive branch, there are few mechanisms [for correction] that can be used. Moreover, the A.L.I.V.E. Voluntary case made it clear that presentment to the governor is required. Chair McGuire relayed that she likes this proposal better than a sunset approach. Number 1297 REPRESENTATIVE GRUENBERG requested the name of the case or cases that specified that the legislature can't, via statute, change a regulation. CHAIR McGUIRE specified that it's the A.L.I.V.E. Voluntary case. REPRESENTATIVE GARA expressed concern with the approach that someone can be appointed from Legislative Legal and Research Services to relate the intent of legislation during the regulation drafting process. He said he knows what his intent is when working on legislation and, hopefully, the legislature has been clear enough that the courts can determine the intent with the legislation. MS. COTTING informed the committee that the forthcoming CS allows the legislative attorney to approach the sponsor of the legislation and discuss its intent. MR. STANCLIFF acknowledged that it could be difficult to interpret the intent of 60 people who voted for a measure for 60 different reasons. However, the Legislative Legal and Research Services staff are capable of at least sounding an alarm, at which point the leadership in the House and Senate will be notified to ask if there should be review. He specified that the Legislative Legal and Research Services staff aren't being asked to make the final absolute judgment in such situations. Hopefully, he concluded, the forthcoming CS will meet the concerns [expressed by Representative Gara]. REPRESENTATIVE SAMUELS said he tended to agree. CHAIR McGUIRE indicated that HB 424 would be held over.
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