Legislature(1997 - 1998)
03/15/1997 11:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 83 - COMMERCIAL VEHICLE INSPECTIONS The first order of business to come before the House State Affairs Standing Committee was HB 83, "An Act relating to commercial motor vehicle inspections; and providing for an effective date." CHAIR JEANNETTE JAMES asked Representative Vezey, chair of the subcommittee, how he would like to proceed on this issue? Number 0076 REPRESENTATIVE AL VEZEY explained that Mike Ford, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, was working on two committee substitutes. They had yet to be reviewed, however, by the subcommittee. Number 0136 MIKE FORD, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, explained he had prepared two committee substitutes. CHAIR JAMES asked Representative Vezey if the committee should adopt the committee substitute as a working document? REPRESENTATIVE VEZEY replied the proposed committee substitute was written in response to version "H" which had yet to be adopted. He suggested adopting version "H" first and then discussing the proposed changes. Number 0212 REPRESENTATIVE VEZEY moved to adopt the committee substitute, 0- LSO384/H, Ford, 3/12/97. There was no objection, the committee substitute was so adopted. CHAIR JAMES noted for the record the arrival of Representative Ethan Berkowitz at 11:09 a.m. Number 0446 MR. FORD explained he started with version "H" of which four changes were made to create version "K." The issue of how to deal with the problem of the federal system changing in a manner that conflicted with the state regulations was to provide that a violation of a state law that was not a violation of the federal system was an affirmative defense. MR. FORD further explained that the amount of the fine of $300 was raised to $5,000. MR. FORD further explained that the committee substitute also addressed the issue of the definition of "commercial motor vehicle." It followed closer with the federal definition. MR. FORD further explained that Sec. 2 of version "H" had been deleted adding a repeal to the section by taking AS 28.32.040 out of law. Number 0492 REPRESENTATIVE KIM ELTON asked Mr. Ford why Sec. 4 did not handle the using of the federal law as an affirmative defense? It seemed that the Commissioner of the Department of Public Safety was authorized to update the regulations to achieve compatibility with federal law. Number 0548 REPRESENTATIVE VEZEY replied that the federal law changed several times per year and the state's ability to change regulations was substantially slower. Therefore, operators were put into a position of having to comply with federal law while at the same time being in jeopardy of not complying with state law. There were situations on the books like that at this time. "I think it's proper to say the Department of Public Safety is really just turning their back on the state law which is not really what we want them to do." The affirmative defense clause said that a person would have good reason to not follow the state law and that good reason would be enough so that the court would not find that person guilty. Number 0630 REPRESENTATIVE ELTON asked Mr. Ford if it was possible to draft this piece of legislation in a manner that said state regulations would always mirror federal regulations? Number 0684 MR. FORD replied there was concern about due process in the manner that Representative Elton suggested. There was a ruling from a building code case from the Alaska Supreme Court that said, "you cannot delegate the authority to adopt regulations and all future amendments to it." The court also suggested that due process concerns were more difficult to determine at the federal level. Therefore, it would be best to say to adopt regulations that would be compatible and if there was a problem a person would have a defense avoiding the legal issues. Number 0776 REPRESENTATIVE VEZEY noted that there was no enforcement agency for building codes, therefore, there was no conflicting enforcement from the feds. The trucking industry, on the other hand, was regulated stringently by the feds so there were two agencies looking over its shoulders. Number 0826 FRANK DILLON, Executive Director, Alaska Trucking Association, was the first person to testify via teleconference in Anchorage. The industry appreciated the work of the subcommittee. He apologized that it was such a confusing issue. "I think we're getting real close to having what we think is a real satisfactory bill." Number 0847 CHAIR JAMES commented she was pleased with Representative Vezey and his extra efforts with this bill. It was a good case in the area of regulation review to evaluate where the regulations would fit into the whole process. Number 0875 REPRESENTATIVE ETHAN BERKOWITZ commented on the increase in the fine from $300 to $5,000. He wondered about its impact on the court process. Number 0901 REPRESENTATIVE VEZEY replied that the increase was keeping within the trend of civil enforcement of safety violations. "We didn't want to make most of these violations of this chapter a misdemeanor because we didn't want to take these working people into jail, and we didn't want to build more jails to house them, and we didn't want to pay for their room and board when they were perfectly capable of working." These were economic crimes, therefore, an economic penalty would be an incentive to comply with the law. "Safety is simply a question of dollars." A $300 fine was easier to pay than it was to comply with the safety regulations. A $5,000 maximum fine would be an economic incentive to influence a person's behavior. Number 0992 MR. FORD stated that he was concerned about the limit because at some point the courts would find that the penalty was high enough to implicate criminality. In which case, a person received a trial, a jury, and a defense, if he or she could not afford it. He did not know if there was a problem at this point, however. Number 1039 MR. DILLON stated that the association would like to see the fine substantially higher. A $5,000 fine did not seem exorbitant for the sorts of safety problems that could be caused by ignoring the regulations. It would be to the advantage of the state and to the industry to have a high fine in order to get people away from the idea of taking chances. "By substantially increasing that fine and using the process that we have available to educate members that run trucks in the state, I think we're going to achieve compliance and actually stay out of the courts more than we will with a lower fine schedule." Number 1103 REPRESENTATIVE BERKOWITZ stated that he was supportive of the raise in the fine to $5,000. He agreed with Mr. Ford that it might not be high enough. Number 1119 REPRESENTATIVE VEZEY stated that we were reserving the violation to Part 3-90 of the Code of Federal Regulations and still classifying a violation of the certificate of inspection program as a misdemeanor. There was concern that the statute needed to be incorporated so that there would not be any confusion about whether it would be a misdemeanor or an infraction. Number 1168 MR. FORD stated that the only other issue left was how to incorporate part of the federal regulations into the existing statutory scheme. Representative Vezey suggested to simply cite the federal regulations, however, there were portions of the federal regulations that the state did not want. Therefore, it was a process of determining those that it wanted to exclude and to develop a way to reference those provisions. "Everyone should understand that we are incorporating that federal provision so we get whatever comes along with that, whether we like it or not." Number 1218 CHAIR JAMES replied we do anyway. She asked Mr. Ford if he would have that information by next Thursday, March 20, 1997? Number 1239 REPRESENTATIVE VEZEY replied that the subcommittee would have time to go over the committee substitute by then. CHAIR JAMES replied it would save time if the subcommittee came back at the next meeting with an explanation of the committee substitute to speed up the process. CHAIR JAMES noted for the record that Representative Fred Dyson arrived at 11:20 a.m. CHAIR JAMES further said that this was a beginning exercise on how to do away with statutory law by trying to make it the federal law, which the state knew it had to follow anyway. Number 1296 REPRESENTATIVE VEZEY explained there was also the issue of federal jurisdiction over inter-state trucking versus intra-state trucking. The federal regulations applied to intra-state trucking, but the enforceability of the feds was questionable. "We know that if we are going to have those enforced at the state level that it's either going to be done by the state or it's not going to be done." That was why this bill was needed to be looked at further. CHAIR JAMES announced the bill would be held until Thursday, March 20, 1997, at which time a final committee substitute would be looked at. Number 1344 MR. DILLON declared that the association stood ready and willing to work with the chair of the subcommittee at any time. Number 1356 REPRESENTATIVE BERKOWITZ asked Mr. Brown if there was any reason to pursue reckless endangerment as a way of effectuating criminal prosecution? Number 1369 SERGEANT BRAD BROWN, Commercial Vehicle Enforcement Unit, Division of State Troopers, Department of Public Safety, was the next person to testify via teleconference in Anchorage. He would stay away from reckless endangerment because it seemed to be a catch-all law. Therefore, he would not want to abuse it. In addition, for a class A misdemeanor the state had to demonstrate that the person or the company knowingly committed the offense. "And, so it's just not a matter of going out and throwing a bunch of people in jail or anything else like that. We have to prove that they knowingly failed to do an annual inspection."
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