Legislature(1997 - 1998)
05/08/1997 08:00 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 264 - NEGOTIATED REGULATION MAKING CHAIR JAMES announced the next order of business was House Bill 264, "An Act providing for a negotiated regulation making process; and providing for an effective date." Number 0266 WALTER WILCOX, Legislative Assistant to Representative Jeannette James, addressed the committee on behalf of Chair James, sponsor of HB 264. He referred to the information dated May 8, 1997 and pointed out the sectional analysis was prepared by the Office of the Attorney General and noted the amendments could be found on pages 13-20. Mr. Wilcox indicated they were working closely with the Administration. He said it looks like a good bill that would benefit everyone. MR. WILCOX suggested that the committee members consider changing the title to cooperative rulemaking. It appears the attorney general pointed out negotiated rulemaking sounds like you are giving away something. Mr. Wilcox said the legislature cannot do this when they are working on statutes. He also mentioned the legislature cannot negotiate the laws. MR. WILCOX reported that the departments have all made comments and that Deborah Behr, Assistant Attorney General, would be briefing them. He said, "We'd also like to turn it into a three, four, or five page bill. -- The Office of the Attorney General has spoken with Nebraska and Montana, which currently use this, and it's not being used as much as anticipated because it's too cumbersome." MR. WILCOX continued, "You will note that there are some amendments on pages 2-20, mostly dealing with changing conclusive to the word majority." He also indicated that there is an amendment on immunity to committee members, and an amendment on how to do a substitution for a no-show. MR. WILCOX said he was asked to address the issue of confidentiality of private business records. He concluded, "And they've done so, we don't think it's adequate." He mentioned they would be addressing that issue during the interim. Number 0437 CHAIR JAMES asked how many fiscal notes are either zero or starred. MR. WILCOX replied, "All of the fiscal notes are zero or starred. There's one representing all (indisc.) all other agencies, there's one for the Revenue, and one for Law." Number 0460 REPRESENTATIVE DYSON asked Chair James what the plan is for HB 264. Number 0472 CHAIR JAMES replied, "The plan is we're working hand and glove with the Administration throughout the interim to come back with this bill come January, next year, to have a draft that we believe will work. That will improve the regulation making process by up-front, especially in conflictive areas, to cooperate - if that's a good word that we decide on - to get an awful lot of the problems out of the way before the end. And we're planning on working on it. I would hope that each member of State Affairs will take an active role in helping us get this through the interim." Number 0536 CHAIR JAMES believed the important issue is that both the legislature and Administration can cooperate to make regulation making less controversial, more effective and assist in the running of our government. Number 0657 DEBORAH BEHR, Assistant Attorney General, Legislation and Regulations Section, Office of the Attorney General, reported on some of the research she had completed since the last committee meeting. She specifically asked the agency's attorney to check with the departments to find out what they thought about the bill and if they had anything in particular they wanted her to focus on. Ms. Behr said, "What I got back was pretty much what Walt [Mr. Wilcox] said. (Indisc. -- background noise), but I hope that we can reduce the complexity, reduce the cost over the interim to encourage people to use this more often." MS. BEHR indicated she received some suggestions from the departments, but generally received a very positive response. She also indicated she would go over these during the interim with Mr. Wilcox. MS. BEHR said Representative Pete Kott stated that it might be helpful to do something so that we can have negotiated rulemaking inside the public comment period. Ms. Behr added, "That requires that we be very careful with all the public (indisc.) watching and see it; that that's something we can look at this summer if the committee has some interest in that." MS. BEHR indicated the Department of Environmental Conservation (DEC) had an interest in being able to negotiate after the close of the public comment period with stakeholders - people who comment on the regulations. She added that it is very difficult under the existing Administrative Procedure Act for them to call a meeting of people who commented and say, for example: "Did we get it right? Do you like it?" MS. BEHR said, "There are some down sides of that in terms of that the public - who might have commented on the change (indisc.). The way DEC would like to do it would not necessarily have notice of it. So, there is up and down sides that we need to discuss about that." MS. BEHR stated the Department of Revenue believes negotiated ruling, in their area, may be confusing to the public since they cannot negotiate on most of the things - like what is the tax break. They have to follow the law. Ms. Behr said, "They were looking at things like affective rulemaking, cooperative rulemaking - so that the public is not given the idea that they can waive statutes, because they can't." MS. BEHR continued, "They also had a concern under the bill. Right now, it requires the department to identify all interest(s) affected by the regulations." She stressed that some of their regulations are impossible to identify, like the permanent fund dividend regulation. She explained, "Every time you do a change in the permanent fund dividend regulation, there's always some unattended group that we didn't know was out there that gets affected by something. And so, what may be more appropriate is to have someone nominate themselves. And I am willing to represent the districts rather than having the commissioner identify all the interests. And there's a possibility of someone coming back later and saying to the commission, oh, you missed this (indisc.) because your commissioner wasn't aware." MS. BEHR indicated several departments came back with the idea of cutting costs and making it a totally volunteer board: even if there is no per diem, no travel costs paid, et cetera. She said some people may not be able to participate under that understanding. But given the budgetary circumstances, that may be something to consider. MS. BEHR said, "Revenue also suggested as an alternative, so that maybe, -- that's what I call a menu of options for state agencies to use. They want to make sure that their option of using workshops is still preserved because what they would like to do is: rather than have a group of people that you have to check with everybody and make sure their schedules are available - and if they have a problem, do they have a designee - because noticing up a workshop - a publicly noticed workshop - that anybody who wants to come can participate in that workshop - offer their comments." She believed that might reduce costs in setting up meetings. MS. BEHR stated those are issues that particular departments focused on. MS. BEHR said she was asked by Representative Dyson to particularly speak with the Department of Transportation and Public Facilities (DOT/PF). She noted that DOT/PF was interested in this idea and cooperative rulemaking may be helpful for them. MS. BEHR stated she agreed with the amendment which takes out boards and commissions because there is a real difficulty in saying who can negotiate or speak for a board or commission. She specified that the Division of Occupational Licensing, Department of Commerce and Economic Development, would have concerns with HB 264 if boards and commissions were still included. MS. BEHR said, "One of the amendments that I discussed, but was not picked up, is [that] you want to include -- a lot of the fish and game regulations are done by the boards of fish and game, but some are done by the commissioner. Given the time frame the commissioner needs to operate, does this cooperative rulemaking system work for them, or is it something we don't want to give the public a hope that we can negotiate on things when the seasons are too compact. Is it really an appropriate thing to have them in there." MS. BEHR reiterated that all the fiscal notes are zero or starred. She said, "We believe that everything in here is basically optional, but we would like to reduce the steps to encourage state agencies to do that." MS. BEHR contacted the attorney general's offices in Montana and Nebraska and expressed that both of them came back with what Mr. Wilcox reported. She reiterated, "It's not being used that much because it's too cumbersome. And any way that we could do to reduce it would probably be beneficial." MS. BEHR checked with the ethics attorney because she had some concerns about dealing with a negotiated rulemaking committee and having stakeholders there, such as hospitals that do their own rate settings. She said, "There are so few hospitals in the state, and that result is they may be setting their own hospital rates by regulation." MS. BEHR said the ethics attorney thought it was appropriate since they are only an advisory board. She said, "You disclose on the record -- the committee decides to allow you to vote and then you go forward. So, he did not see a problem with having that expertise on the board because it was an advisory board." MS. BEHR referred to the amendment on immunity. She said they hoped this would encourage more people to volunteer to serve on boards and commissions. She said, "There's an amendment in there regarding consensus, moving it down to majority. Right now, the bill is written with consensus. And I did some research on the models -- most of the models I was very surprised do - they have consensus and then they do some sort of a little report. And I still think - I think if you have to go to (indisc.) clause (indisc.), unless you go to regular majority - and minority would work. And that is in the amendment that Walt [Mr. Wilcox] suggested to you." MS. BEHR asked the committee how they wanted this to work with existing advisory boards. She referred to a conversation she had with Mr. Wilcox and added, "Each of the 'revisory' boards (indisc.) - some of them are in fact just global planning agencies and really do very little work with regulations. So we may want to have negotiated rulemaking there. Or it may be just another cost slowing down regulation change that people maybe decided if the advisory board is enough." MS. BEHR noted HB 264, uses the Administrative Journal as a primary notice provision for committees. She was informed by the Office of the Lieutenant Governor that the Administrative Journal is on the Internet. She said, "But it's not really a primary way to get information. ... I would just allow the commissioner to do reasonable notice under the circumstances. If that means when the commissioner goes to speak before a mining group and says, 'Hi, I'm interested in mining. I'm going to set up a negotiated rulemaking committee. Do you want to volunteer? Let my office know.' And then maybe doing a newsletter, structurally with something like that." Ms. Behr stressed she would do her best to try to minimize cost. She believed the bill may be a little insufficient since she does not know how many "mom and pop" day care centers would be in the Administrative Journal, but thinks it may be zero. MS. BEHR said, "Also, when the committee comes out with a recommendation, you are -- the commissioner is essentially supposed to notice, as I gather it, notice of it once she has a legal problem with it. There may be other reasons why the commissioner might not want to notice up a regulation. Walt [Mr. Wilcox] and I were talking about things like fiscal implications. Somebody may come up with something that might be perfectly legal, but the state of Alaska can't afford it. Do you still want the commissioner to notice that up? My suggestion would be to just -- legal or other obligations, or legal or other considerations, or something - leave it broad." Number 1171 CHAIR JAMES gave Ms. Behr a special thank you for her work on HB 264 for the record. REPRESENTATIVE DYSON interjected, "I can't see that these folks are off course." Number 1230 CHAIR JAMES noted there are glitches in legislation because of the way legislation is passed. She said she believes by using the cooperative up-front method of putting the regulations in to implement the statute will point out errors in the statute. She indicated the legislature could come back the following year and fix it. She indicated that they find it is distressing because it does not accomplish the goals that it was intended to. Therefore, the regulations that come out of that process are distressing because that is not what people expected the law to do. CHAIR JAMES concluded that it includes more public process but she believes it could be done in a way that will be less costly in the end. She said, "And certainly, if we could do any little thing to take away the distress that people have with government in general, that will be a move in the right direction." Number 1307 REPRESENTATIVE ELTON asked, "Can you negotiate a rule, I guess we're calling cooperative now. Can they do business on teleconference and can they vote on teleconference." MS. BEHR responded saying, "If not, I'll make absolutely sure they can. That's a good suggestion." Number 1332 CHAIR JAMES appointed Representatives Berkowitz, Hodgins and herself to a subcommittee to work on HB 264 during the interim.
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