Legislature(2005 - 2006)CAPITOL 120
04/06/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB12 | |
| HB33 | |
| HB205 | |
| HB94 | |
| SB105 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 12 | TELECONFERENCED | |
| + | HB 33 | TELECONFERENCED | |
| *+ | HB 205 | TELECONFERENCED | |
| += | HB 94 | TELECONFERENCED | |
| + | SB 105 | TELECONFERENCED | |
| + | HB 183 | TELECONFERENCED | |
| + | SB 36 | TELECONFERENCED | |
| += | HB 150 | TELECONFERENCED | |
| + | HB 152 | TELECONFERENCED | |
HB 205 - REVIEW AND SUSPENSION OF REGULATIONS 2:51:04 PM CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 205, "An Act relating to review of proposed regulatory actions and regulations, fiscal effect of proposed regulatory actions, and suspension of regulations." REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee substitute (CS) for HB 205, Version 24-LS0696\F, Cook, 4/4/05, as the work draft. There being no objection, Version F was before the committee. JIM POUND, Staff to Representative Jay Ramras, Alaska State Legislature, sponsor, said on behalf of Representative Ramras that HB 205 will bring accountability to all the laws that are being passed in the state of Alaska. He elaborated: Each year, the legislature labors to pass legislation that is good for the state and its people. But when most of us, and the people, aren't looking, a group of administration workers turn around to administer those statutes by interpreting the language to what best fits their needs. This interpretation process sometimes varies from the statutory language and, in a worst-case scenario, conflicts with that legislative intent. Once this process begins, the public and those affected by the proposed regulations have very limited ability to stop them; no elected public official has any real say over the regulation process. These regulations have the effect of law unless someone is ... able to convince a court to overrule them. [House Bill 205] puts regulation writers on notice that the [Joint Committee on Administrative Regulation Review] will be watching and may, at a very minimum, slow the process down. By a vote of the legislature a [regulation] ... could be annulled. ... [The legislature] has the constitutional right to write laws, not some nameless, unelected and unaccountable state employee who may have a personal agenda. [House Bill 205] also requires that the public know what the costs are of a regulation, not only for state government but for the public as well, and, in response to Representative Gruenberg, I would suggest municipalities. At ... first I thought that this bill should have a huge fiscal note, but in reality, since I've looked at the amount of additional work that this language would require over what is [currently] being done, I cannot believe that they can come up with a much larger fiscal note than the zero [fiscal note] they've been showing us over the last many years [for the promulgation] of regulations. I would urge your support of House Bill 205, and I'd be glad to answer any questions. 2:53:57 PM MR. POUND, in response to a question, said that [under the bill], a majority of the members of the Joint Committee on Administrative Regulation Review can suspend the implementation of a regulation until adjournment of a regular legislative session unless the legislature meanwhile passes a bill that annuls or invalidates the regulation - if the latter is not done, then the regulation is allowed to go into effect upon adjournment of the regular session. REPRESENTATIVE GRUENBERG asked for a copy of the March 19, 2002, memorandum referenced in a Joint Committee on Administrative Regulation Review memorandum dated May 1, 2002. He also asked whether the bill would allow the legislature to affect regulations without a statutory change. MR. POUND said that prior to the State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980), the legislature had the authority to annul a regulation via a concurrent resolution adopted by a vote of both houses. However, the A.L.I.V.E. decision determined that doing so was unconstitutional under the separation of powers doctrine; further, the court said that in order for the legislature to annul a regulation, it had to be done via statute, which is what is being proposed via HB 205. With regard to the aforementioned referenced memorandum, he said that he'd been unable to locate it, and so members' packets only have the Joint Committee on Administrative Regulation Review's response dated May 1, 2002, which he said merely addresses an example wherein a department, in writing regulations, ignored both the public and the legislature's intent with regard to correspondence schools. REPRESENTATIVE GARA said he questions whether it is constitutional for a few members - in this case, simply a majority of the members of the Joint Committee on Administrative Regulation Review - to [annul] a regulation. He asked whether a legal [opinion] on that issue is available. MR. POUND indicated that he did not have such an [opinion], and reiterated that the Joint Committee on Administrative Regulation Review by itself would not be [annulling] a regulation; instead, it would just be delaying a process that can already, of its own accord, take up to as long as a year to complete. He also mentioned that under the bill, should the Joint Committee on Administrative Regulation Review do nothing with regard to a regulation, it would become law as a matter of course. CHAIR McGUIRE noted that a legal opinion on this issue could be requested and would be helpful. She offered her recollection that some states have ruled opposite of the decision rendered in the A.L.I.V.E. case; thus, in those states, a simple resolution can be introduced to repeal a regulation without presentment to the governor. She offered her understanding that some other states have a "blanket sunset" on regulations, ranging from five to ten years, that forces the legislature to look at those regulations and decide whether they should be renewed. Also, some states have a committee similar to the Joint Committee on Administrative Regulation Review, and the powers of those committees vary; some have subpoena powers, some have the ability to question people when reviewing regulations, and very few are as "neutered" as Alaska's Joint Committee on Administrative Regulation Review. Compared to other states, Alaska has the most power invested, via its constitution, in its executive branch and the least ability by the legislature to impact regulations, particularly in light of the A.L.I.V.E. decision. REPRESENTATIVE GARA suggested that the question is whether a committee can temporarily invalidate regulations given that it can't permanently invalidate them. He concurred that a legal opinion on this issue would be helpful. 3:03:40 PM CHRISTOPHER KENNEDY, Senior Assistant Attorney General, Environmental Section, Civil Division (Anchorage), Department of Law (DOL), opined that the Joint Committee on Administrative Regulation Review serves the important function of looking at regulations and determining whether they "go over the line"; if regulations are found to go over the line, the Joint Committee on Administrative Regulation Review can bring this fact to the legislature as a whole. Noting that HB 205 proposes in part to alter AS 24.20.445 - which pertains to the suspension of regulations - he relayed that Legislative Legal and Research Services has said, in part, in a memorandum dated January 17, 2001 [original punctuation provided]: AS 24.20.445 permits the Administrative Regulation Review Committee to suspend the effectiveness of the adoption of a regulation when the legislature is not in session. In discussing the constitutionality of AS 44.62.320(a), the court in A.L.I.V.E. mentioned the power of the committee to suspend, under AS 24.20.445, the operation of a regulation. While not specifically ruling AS 24.20.445 unconstitutional, it suggested that because of the primary holding that he legislature may affect a regulation only by law, it may not delegate to a committee the power to affect a regulation by any other method. Nor, indeed, may the legislature delegate its law-making power to a committee. ... Thus the effect of the A.L.I.V.E. case is to strike down the Committee's power under AS 24.20.445. MR. KENNEDY said the DOL agrees with Legislative Legal and Research Services that the whole underlying authority of AS 24.20.445 is now inoperative. Therefore, he opined, Sections 1- 5 of HB 205 merely "rearrange the deck chairs on the Titanic after the Titanic is already resting on the ocean floor," and so the administration doesn't see any benefit to those provisions of the bill. REPRESENTATIVE GRUENBERG said he cannot see "this" surviving a constitutional challenge. MR. POUND opined that the average person doesn't understand regulations until they affect him/her, that [during the public hearing process] the language in proposed regulations makes no sense to the average person. He relayed that when he was the aide for the Joint Committee on Administrative Regulation Review, most attorneys and members of the public that he'd spoken with indicated that they hadn't read their newspapers' public notices regarding proposed regulations. He opined that departments often simply ignore the public comments offered during the public hearing process. Then once regulations are established, departments can modify them without any further input from the public; also, according to an attorney general's opinion, the Lieutenant Governor's role in the promulgation of regulations is then merely administrative and mandatory. REPRESENTATIVE GRUENBERG said he can sympathize with Mr. Pound, but that won't change the constitution. In response to a comment, he mentioned that one could attempt to get the court to overturn the A.L.I.V.E. decision. 3:09:43 PM REPRESENTATIVE GRUENBERG suggested that there may be constitutional ways of dealing with the perceived problem, which, he surmised, is that some agencies are out of control with regard to the way they are interpreting statute and then promulgating regulations based on those interpretations. Assuming that that is correct in some cases, he added, why not try to find a constitutional fix. For example, the legislature could pass a law that says regulations are not effective until they are submitted to the Joint Committee on Administrative Regulation Review and a certain amount of time has elapsed; such would give the legislature time to act. He offered his belief that there are ways of solving the problem, but that HB 205 is not one of them. CHAIR McGUIRE offered her belief that the legislature needs to continue attempting to find a solution to the problem, that of unelected individuals in government promulgating regulations based on their interpretation - sometimes rightly, sometimes wrongly - of statutory language. She mentioned the Department of Health and Social Services (DHSS) as an example of a department that has tremendous power to promulgate a wide range of regulations. Noting that not even the lieutenant governor has the power to do something about regulations once they've gone through the process, she opined that the current process does not work. 3:14:13 PM REPRESENTATIVE GRUENBERG suggested that they hold the bill for use as a vehicle and have the Joint Committee on Administrative Regulation Review and the House State Affairs Standing Committee work on the issue during the interim, and reiterated his belief that the bill as currently written won't solve the problem. CHAIR McGUIRE asked Mr. Pound to pass that suggestion on to the sponsor. She also suggested that the sponsor research what other states do, and referred to information compiled in the past by Legislative Legal and Research Services on this issue. REPRESENTATIVE GRUENBERG opined that HB 205 should have been referred to the House State Affairs Standing Committee. REPRESENTATIVE ANDERSON, speaking as the current chair of the Joint Committee on Administrative Regulation Review, suggested that it would be a good idea to work with the National Conference of State Legislatures (NCSL) on this issue. 3:17:08 PM REPRESENTATIVE KOTT mentioned that most legislation that results in regulations starts out as an individual's bill, and that he has suggested to members that they follow their legislation all the way through the regulation-making process to ensure that unintended issues are not swept into the resulting regulations. He mentioned an example of one of his bills for which regulations were created that did not conform to his intent. CHAIR McGUIRE mentioned the "aquatic farm" Act as another example. REPRESENTATIVE COGHILL noted that sometimes the legislature is at fault simply because it has added to a bill language authorizing a department to promulgate regulations. So although the legislature might have delegated that authority in a given situation, it might be in order to review the delegation of that authority. He opined that the legislature should be very careful in how it delegates its authority. 3:20:31 PM CHAIR McGUIRE noted that the dissenting opinion in the A.L.I.V.E. case questioned why the legislature should not be able to affect a regulation given that it authorized its creation to begin with. REPRESENTATIVE GARA, too, noted that sometimes bills will say something general but will then also give a department the authority to create regulations. He characterized the creation of such language as doing a disservice because there is the risk that a department will create regulations with unintended consequences. Bills, he opined, should specifically tell departments what the legislature wants done, rather than giving them leeway. REPRESENTATIVE GRUENBERG, referring to Chair McGuire's comment regarding the dissenting opinion in the A.L.I.V.E. decision, clarified that the legislature does have the authority to affect regulations, but it must do so in the same manner in which the authority to promulgate those regulations was given - in other words, through statute. CHAIR McGUIRE concurred. [HB 205, Version F, was held over.]
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