Legislature(1997 - 1998)
03/07/1998 10:05 AM House STA
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* first hearing in first committee of referral
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+ teleconferenced
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HB 338 - ANNUL ALL ADMIN. REGS; REPEAL APA CHAIR JAMES announced the first order of business is HB 338, "An Act relating to the repeal of provisions of the Administrative Procedure Act, prohibiting the adoption of regulations by an agency of the executive branch of state government, annulling all regulations adopted by an agency of the executive branch, and relating to additional legislation to carry out the purposes of this Act; and providing for an effective date." Number 0296 JACK CHENOWETH, Attorney, Legislative Legal Counsel, Legislative Affairs Agency, continued, "...to one specific example because I worked on this Legislative Council for the past three years. When Senator Green decided that she wanted to revise the agricultural regulations, she proposed changes that necessarily affected the regulations that were then in place and she specified in the bill that the regulation should be annulled, and we gave her that draft. Both in the 1995 and 1996-session, when that bill passed and got caught up in the argument of whether it was vetoed and the veto properly overridden - and in the bill that passed last year, there are specific regulations that are contrary to the proposed laws that she had been encouraging, and those regulations are identified and they are annulled. And, in point of fact, they are noted as annulled in the Administrative Code." Number 0307 MR. CHENOWETH stated it's going to take more work, no doubt about it. Whether you stick with the current system and try to identify particular regulations that should be set aside or should be amended, it's going to mean more focus on how you draft and enact statutes. He said, "If you go with something like this, my fear is that it's going to be each agency, each board, each commission for itself." Number 0306 MR. CHENOWETH continued, "Finally, there are a number of places where I'm not sure what the impact of this thing is. My recollection in Cleary v. State of Alaska [management of correction facilities and inmates' rights] is that one of the ways that Cleary v. State of Alaska, the (Department of) Correction's litigation, has been implemented is by requiring the adoption of an extensive body of regulatory material. If that material goes out are we no longer in compliance with what we're required to do in Cleary v. State of Alaska? In all of the places where the Legislature has said that we want to encourage agencies to bring in and conform their processes so that they would comply with federal law, what does it mean when an agency can no longer do that under something like an Administrative Procedure Act?" Number 0310 MR. CHENOWETH said, "And finally, I'll go back again and express whether you really want to spend your time worrying about things such as how to regulate the taking of the fishery and game resources in this state when it can be left to another agency or board or commission to be handled through the adoption of appropriate regulations. The same thing is true with the insurance or the regulation of insurance. The same thing is true with the regulation of public utilities in this state. All of the things that require examination and rate-making are held up to being unrepealed by this bill, and I'm not sure how you proceed." MR. CHENOWETH concluded, if this bill passes, where does that leave the Administrative Regulation Review Committee, what does it do. There are no rules and regulations for the committee to look at anymore. Number 0316 CHAIR JAMES said, "The one thing I wanted to -- in your testimony, that I would like to comment on is SB 109, the agricultural bill. And one of the reasons why I believe that those -- and I knew that you can negate Administration's regulations by law, by a statute, yes we can do that. And the reason that needed to be done, that just changing the law wasn't enough, is because they put regulations on that didn't implement the law. In other words, it went beyond the law and established things that was never intended originally in the law. There's lots and lots of cases of that." CHAIR JAMES noted, having been Chairman of the Regulation Review Committee for these last two years, it's a horrendous job just to look at those. The whole process of the notice of the regulations, which she believes we're making a few changes there, when it just says the area that is being changed, then you have to see that in the paper or people get noticed, then you have to send for the writing so that you can understand just exactly what is being changed, then you have to hold a hearing and make your comments and you don't know if they've listened to you or made any changes until you get the final draft when it's too late to say anything. Chair James said that's part of the problems that the public has that she hears about all the time. Number 0328 CHAIR JAMES mentioned Representative Vezey admits this bill needs to be tweaked if it's going to work and admits that it's just thrown out there for an idea. She said we need to think about it. CHAIR JAMES stated, even with the legislation of the negotiated regulation making, that we're trying to get through this year, we still have not addressed the communication that we need between the Administration and the Legislature on the meaning of the legislation, and it's a two-way street. She said, "Number one, I don't think when the Legislature passes legislation that they have thought about it thoroughly enough - it sounds good so let's do it and let the Administration fix it. And then when the Administration follows it, that's not what they meant, and it's not down anyplace where it meant. I'm not saying that it is all the Administration's fault, I'm saying it's a dual problem. And I'm saying if we're going to be able to meet the public's needs, we have to have more communication at this level of just exactly what (indisc.) legislation means. And there has to be then, if someone gets off ship in the Administration and puts in regulations that they want to implement this and thinks it fits, there needs to be a double-check there from the Legislature and the voice should be loud enough that they can make changes." CHAIR JAMES reiterated the public is bewildered and they look to the Administration and say they don't like this regulation and the Administration's response is the Legislature passed the law, we're just implementing the law, go talk to them. And the Legislature says, we can't do anything about it, it's a regulation. So they get the runaround and feel totally disenfranchised with their government. She said what she is trying to do is make the government more responsive to the public's needs, and that's why we're hearing this bill today. Number 0349 REPRESENTATIVE AL VEZEY explained the reason that the bill takes away the rule-making and regulation-making authority from the Administration, is because in 1980 the supreme court deflated rules and regulations of the agencies with law. The intent of the bill is simply to bring lawmaking power back to the Legislature. He said, "We're into a game of nomenclature here because nothing in this bill says the agencies can't make guidelines, they're not going to be law. Many of us think of rules as guidelines and what not, but the supreme court has said that rules and regulations enacted by the agencies are law and that the Legislature does not have the authority to annul those laws. So all we're really trying to do is separate the, what I would tend to call regulation and rule-making authority of agencies, we're going to have come up with new nomenclature and call it guidelines because it's not going to have the full force of effective law, if this becomes law." Number 0358 REPRESENTATIVE ETHAN BERKOWITZ on that point noted we do have the ability to repeal regulations, we just have to do it consistently with what the constitution says. We can repeal regulations if we do it by passing a bill, and then having that bill become signed into law, then we can repeal that regulation. We have delegated powers to agencies to make regulations. We (indisc.) that delegation consistent with the bill process - not a resolution process consistent with the bill process. He said once we make that delegation, the only way we can repeal those delegated regulations are through law, not resolution. CHAIR JAMES stated it raises that to a higher level. She said, "Let's say you've worked with the Administration and they refuse to change it. You're assuming that you wouldn't have to do a bill to erase a regulation if you tried the other method and they refused to change it. So you decide, they refused to change it, the only way that we can get rid of this onerous regulation is to pass a piece of legislation. It is subject to the Governor's veto, he or she's going to stand behind his Administration who refused to change the regulation and veto it, which then takes a two-thirds vote to override." CHAIR JAMES concluded we're only dealing with a law that doesn't have constitutional or even financial interest, and we have to have a majority to implement the negation of a regulation. She expressed, therein lies the problem. Number 0372 REPRESENTATIVE BERKOWITZ stated then the solution is simple, then don't delegate authority to agencies to make regulation. CHAIR JAMES remarked, that's where we are today. REPRESENTATIVE BERKOWITZ continued, "But we've already done that and the answer isn't undo all the regulations that have already been done, it's next time any one of us proposes legislation that within the legislation delegates power to an agency to make regulation, we make the regulation part of the legislation. And we don't do that, we don't do it for a simple reason, it's very complicated, it takes a lot of time, we don't actually have the expertise. What we do with legislation is set out guidelines. Now, the regulatory process can be enhanced, public participation can be improved, but once we make that delegation we've made that delegation. We are bound by the law that's created just to show you that it's a regular law. That's what the supreme court said." CHAIR JAMES asked Representative Berkowitz do you think we spend sufficient time on defining the law that we're putting into effect to have considered what the consequences would be. Number 0383 REPRESENTATIVE BERKOWITZ replied, Madam Chair, when you allow me a softball I'm going to smack it out of the park. There is no way that we give due consideration of legislation we pass. We don't give it... CHAIR JAMES interjected don't you think something like this would require us to be more cautious. REPRESENTATIVE BERKOWITZ responded you had entered the current circumstances, we're not cautious enough. Under the current circumstances, bills move forward insufficiently today. He said, "So, if I think if we would add to our responsibility we're going to be more careful, I don't think so. I think it paves the way to what the supreme court cautioned against in the opinion. They say the dangers of having the Legislature get involved in the minutiae that are involved in regulation, legislative veto encourages secretive, poorly informed and politically unaccountable legislative action. And that's one of the problems of getting involved in the detail." CHAIR JAMES said, what if we didn't have the Administrative Procedures Act, and what if the Administration wasn't required to write the regulations and what if we were. Wouldn't we be able to address that by passing a piece of legislation that had an effective date that's a year and a half down the road and in the mean time a legislative group working for the Legislature had to write the regulations and then we take a look at those to see whether we really like the legislation or not? REPRESENTATIVE BERKOWITZ replied, that's possible. CHAIR JAMES indicated that wouldn't take any more money because the same people that are writing the regulations would be replacing the ones that are currently doing them. But it would certainly be a better system. She said, "What I'm saying is, just because we've always done something a certain way, and if it has problems, there certainly is a better way. And we definitely have a problem with regulations and the public and we need to spend more time thinking about how to fix it." REPRESENTATIVE BERKOWITZ said, "And I agree completely, but this isn't a fix, this is just a..." CHAIR JAMES called on Representative Elton. Number 0404 REPRESENTATIVE KIM ELTON said he has a couple comments and a question of Mr. Chenoweth. [NOTE: TAPE 98-32, SIDE B IS BLANK.] TAPE 98-33, SIDE A Number 0001 REPRESENTATIVE ELTON continued, "...And just a comment of legislative intent, we often do things, and then when the consequences of our actions ripple out we say, well, we meant to do this, but we certainly never meant to have that occur.' So defining legislative intent is often difficult. We don't sometimes know what the effect of our intent is until it's been out there and until the regulation process begins, and somebody begins drafting a regulation we say, 'well, wait a minute, that may have happened under the terms of the law that we passed, but that wasn't unintended intent.' And a good regulation process helps us there." REPRESENTATIVE ELTON asked Mr. Chenoweth what happens if this bill were to pass. What would happen in the realm of emergency regulations? For example, if the Board of Fisheries allows the department to make an emergency closure in a commercial fishing area, if this bill passes, will the department be able to make those emergency closures. Number 0013 MR. CHENOWETH replied if this bill passes the mechanism for emergency regulations are no longer available. In the case of the fish and game example that you offer, he said he would see the appropriate board, or more likely the commissioner acting in some fashion to spell out what it is that ought to be done or that should not be done and finding some other appropriate vehicle by which to communicate that. He said, "If you can't use something that has the status of a rule or regulation and the force of law, it can be called something else, I think Representative Vezey identified that as a guideline, or call it something else. But the question is what is the legal status of that (indisc.) by whomever makes it, the Board of Fisheries or the commissioner, or however it's made. That's a good question because fish and game matters, particularly the regulations go directly out to the field to enforcement officers and they compile them and act on them because they know that after the running of the 30 days, and the regulation date becoming effective, those can be enforced. The status of agency decisions, however handled under this kind of legislation, is really opened at this point." MR. CHENOWETH noted he is more concerned about how all of the agencies that you're concerned about make decisions. Right now, if an agency program wants to make a decision it would have to at least notice it up and give the opportunity for public comment. He said, "Without that kind of requirement here, I'm afraid that you're going to see agencies essentially trying to fill in the places that the Legislature has left open in laws by some other mechanism - memos, desk references, something. There is going to be as many different devices I suppose as there are people who can dream them up. And I'm not sure that we'll ever find out what all of those may turn out to be. But more than that, there's no requirement that the public has an opportunity to review and comment before those things are put into play and as those are being changed. If I understand this correctly, agencies, boards and commissions may not adopt rules or regulation, they may not adopt something that has the force of law so they'll do something else, they will fill the gaps." Number 0039 CHAIR JAMES said she understands this is a very simple bill and doesn't have any parameters or any conditions to deal with the intricacies of the whole issue. She reiterated that it's too simple and doesn't solve the problem. CHAIR JAMES referred to Cleary v. State of Alaska. She told Mr. Chenoweth we could have in law that if the Legislature was going to approve regulations, we could do it similarly to what she said earlier ... is that we could have a longer effective date. We could not pass laws this year that is not effective until down the line, after the regulations are done, and then decide is that what we really meant and take another look at it with the public process. Chair James indicated that we could also establish an emergency situation where something is wrong, and the time is not yet for the legislature to meet, that they could have the authority to go forward and bring it back to the Legislature for approval at the next session. CHAIR JAMES continued, "If we were opening our minds up to what other kinds of methods might work, we might find and recognize some of the glitches that are in this situation that we have now that we don't notice because we're too busy following them. My whole idea is what can we do to make this whole area of law be more responsive to the public's good. And, that's for further thought, you don't even have to have an answer on that. But what I'm saying is this is just an idea that could be expanded in other directions, and I'm not saying that's the way we ought to go, I'm just saying that it recognizes that there are some flaws in the current system." Number 0055 REPRESENTATIVE VEZEY added that there are many things that you can do to address Mr. Chenoweth's concerns. For example, if the Legislature wanted to, it could give the agencies the authority to make law with say a 108-day life that automatically expires the end of the next legislative session if not ratified by the Legislature. The point being, is that in 1980 the Alaska Supreme Court, without regard, in his opinion, to some very important sections of the constitution gave the right to make legislation to the Administrative branch of government without going through the legislative process. Number 0066 NANCY MICHAELSON testified via teleconference in opposition to HB 338. She noted she has serious questions about the wisdom of passing HB 338 into law and strong objections to it. MS. MICHAELSON said, "The sponsor's, Representative Vezey's, statement says that HB 338 will not change any laws or regulations now in effect. I cannot see that to be true. Although the statement says, the bill provides for regulations to be brought before and ratified by the Legislature through the legislative process, that is very different than saying no laws or regulations now in effect will be changed. I find the wording of the bill to be insufficient. Should even one regulation concerning public safety or protection of our environment run into a snag while being taken up and approved by the Legislature, such as being tabled, delayed for any reason or dying in committee, that regulation would be changed, it would no longer exist. I find this to be insufficient and irresponsible." MS. MICHAELSON continued, "I want to understand Representative Vezey's motives for introducing this bill and I appreciate the fact that he opens this morning saying that it was philosophy more than mechanics. It's difficult for me to read the bill however, think about what it says and take it seriously. Legislative approval would, in my eyes, affectively shift regulations made for public interest in word to regulations subject to special interests, subject to the politics of tradeoffs, special deals, influenced by special interest, lobbyists and money. It appears introduction of this bill is done as something theoretically that makes sense to Representative Vezey but to me it seems like a nightmare. It appears it's an attempt to show how you, Representative Vezey, takes so seriously the charge to make the state government responsive to their responsibility to the state constitution which is very good, idealistically that is. However, realistically this bill seems to me to be a joke and a not very funny one." Number 0084 MS. MICHAELSON stated, "The end results of passing it, looks to me to be detrimental to the protection of our public health, our public safety, and irresponsible in that provisions protecting our environment would be taken away. I think that two-years-ago Joe Ryan, your legislative aid, was quoted in the hearing as saying, 'The question is, does the Legislature want to shirk its responsibility and allow major policy changes to be implemented by the employees of Alaska who are not elected by citizens to their position?' I say it's not a shirking of responsibility it's allowing professionals to do their jobs. It's taking important public protection out of the rings of politics and special deals. I don't believe it's possible for this body to draft legislation that would foresee every situation." MS. MICHAELSON concluded, "I believe it's a logistical nightmare, a public policy nightmare, and a bill that hopefully will go away with the next morning's light. I don't think that Representative Vezey's hopes for what he wants are best done in this bill. I think, if he wants a constitutional convention, then maybe we can spend our money planning for that and making sure that gets carried off instead doing this bill. And, I think you're asking bureaucrats to be even more bureaucratic by spending time preparing regulations for legislative review instead of doing their work at hand." Number 0097 DIANA BUFFINGTON, President and State Coordinator Children's Rights Council of Alaska and Chairman, Alaska Task Force on Family Law Reform testified via teleconference in support of HB 338. She said "It is about time that we take the special interest groups that influence the political appointees of whichever ruling body may be in effect by the Governor's appointees, especially in the family law areas, we should remove these people from setting down the interpretation of the Legislature which is usually on conflict with these agencies." Ms. Buffington gave a definition of rules and regulations. MS. BUFFINGTON continued, "These agencies have for far too long gone out of their way to implement outside the bounds of the intent of the Legislature. The Alaska Supreme Court says that the Department of Law, as well as the agencies concerned in the family referral agencies are usually using very strained interpretation of the law or a broad remedial reading of the law. And I don't know where your children are in school ... if they're in the remedial reading class, they are in the dumb class. And if our Department of Law cannot make rules and regulations that are within the intent of the law, then we have a serious problem that affects thousands upon thousands of people in this state on a very regular basis. We are for this bill, it is about time somebody did take the regulators, the bureaucrats who are certainly, absolutely, and positively, probably more biased against the people that they serve..." Number 0122 MARLENE LEAK testified via teleconference in support of HB 338. She said, "I have seen the legislature turned into essentially a feel good social club where activity is mistaken for productivity. And for 120 days the legislators get together and talk about how the people don't really understand what they go through and how hard they work and leave the actual responsibility to the legislation to the bureaucrats in the Administrative branch who are essentially unaccountable. The opponents that I have heard today, rather strikingly in my opinion, seem to attribute godlike qualities to bureaucrats in that they should not need to be accountable, they are the experts, they know these things and they would only be influenced improperly by being accountable, by being responsible for what they do. ... I cannot hold with the totally authoritarian view of the people who opposed this bill." MS. LEAK indicated that instead of trying to act as check and balance over the state's Supreme Court, making this terribly unwarranted, 1980 decision on the Administrative Procedure's Act, it has done nothing in response until now. It is not acting as check and balance. ... Ms. Leak explained state government, responsibility and accountability and gave an example of being an authoritarian. She concluded, if you want to make, the way things (indisc.) now, don't run for the legislature, get a job in the bureaucracy. Number 0167 REBECCA MICHAELSON testified via teleconference in opposition to HB 338. She said, "I am a citizen of Alaska and I'm currently 17 years old and a senior in high school. I have great hopes in my future. Next year I am attending a university down in the Lower 48 and I hope to return to Alaska some day. When I return to Alaska, however, I wish and hope and pray that I return to one that is not in the midst of chaos." MS. MICHAELSON continued, "My purpose today is to comment on HB 338. I see it as a travesty to the American government. I have spent an immense amount of time studying the American government, last year I traveled to Washington, D.C. and saw the government at work on a national level and I have great respect for it. However, this bill is not realistic and I find it would have awful awful effects on the state of Alaska. For example, discharging firearms in public parks is a regulation. I don't see how you can say the people who made this regulation, and the people who make other regulations, aren't accountable. They're professionals, they get paid for what they do and there is a committee set out to review these regulations. I see this bill as a shortcut for people on the committee or familiar with the committee. You know, if you get rid of people who make the regulations and you make the regulations yourself, then there is less work and I find that awful. Representative James was saying earlier that the public is horrified. Well I, a citizen of Alaska, am horrified that this bill is up for even review. I think it should be killed in the committee. I do respect that this bill is being brought forth however and there's discussion on it because it's a part of the government process, it's a part of democracy and I do appreciate that. I do appreciate Representative Berkowitz and Elton's comments on the fiscal impossibility of this and the reality that this would take an immense amount of work. You'd have to go into session after session, after session of work to review all these regulations. So, that is my opinion. HB 338 should not be considered to make into law." Number 0199 HARRY NIEHAUS testified via teleconference in support of HB 338. He said it takes longer to rewrite a statute to correct one of these regulations than it does to review the ones that have been brought to your attention because they're simply just not working. You could look at it and realize this wasn't the intent. For example, HB 375, page 2, Section 1(a) (short title, Crimes Against Children/Foster Care), freedom from substantial neglect of basic needs. ... He said, "You may consider food, clothing and shelter as a substantial need, but to what degree. You may have people within a bureaucracy - now we know the nature of a bureaucracy is to grow, therefore, if they want to secure their jobs, these basic needs will not be the same as what I consider basic needs. They will therefore push their intent rather than the people's intent which you are writing out in bill form. Therefore, I say yes, we need to review these regulations to say, no, this was not our intent." Mr. Niehaus gave another example. MR. NIEHAUS indicated, as lawmakers, you know what the intent is. He said, "That doesn't mean every regulation that's passed you have to change, it means the ones that come to your attention and are blatantly wrong, this is what you have the control over. And yes, I do agree with you and Mr. Vezey and I hope this bill does go through." Number 0221 REPRESENTATIVE JOE RYAN, Alaska State Legislature, came before the committee in support of HB 338. He said he went back and looked at the minutes of the Constitutional Convention and why the powers were separated the way they were separated. He explained King George III's agents arbitrarily made any rules and regulations they chose in the king's name which defied people of a whole lot of liberty, property and a whole lot of personal wealth which was a value of their work. And so they were very careful when they put the forms of government together to invest the power to make law in a representative body which represented the people. REPRESENTATIVE RYAN stated, "In our constitution, all power comes from the people and that power is represented by their elected officials. We choose as a body, both sides of this body, to give the Governor what administration we choose to give the Governor. We are mandated by the constitution to create a supreme court and (indisc.) courts are at our will and we can create them and dissolve them when we choose. So the ultimate power for the people in the state of Alaska rests with their elected representatives. When you delegate something as terribly powerful as the ability to make law to people whom you hire you must realize that they, and the person for whom they work, has a political agenda and that political agenda will very likely be exercised somewhere and their job of making laws. The fact that they are not accountable for that is very simple. If you and I pass an odious and (indisc.) law we will be held accountable at the next election. People will be angry and they will not support us and we will retire to private life. But we don't see people in the Administration being retired to private life for things they do by regulation, so there's no check and balance. We are told by the administrative branch that we should sit here and do that for which we were authorized to do and the governor will run his or her government as he chooses fit. And if we don't like it, then we can take the appropriate powers through the budget." Number 0244 REPRESENTATIVE RYAN continued, "This bill, in the face of it yes it's pretty simple, I think it should be flushed out somewhat. I applaud you in the work you've done in the last couple years in reviewing these regulations. I think there is a better system. I have complained bitterly that we have given away our lawmaking power by this Administrative Procedures Act, we've given away our taxing power by allowing the Administration to charge fees by regulation, and a fee or a tax are the same thing. ... And now we're contemplating the idiocy of giving the Governor blocks of money and holding goals and objectives as the purpose. Well it's obvious they'll come back in two years, and next year, and say you didn't give us enough money to accomplish our goals and objectives and so we did pretty much what we chose to do. I don't think we should abrogate these powers and abrogate this responsibility given to us by the public. I think that we are the people that will be held accountable. I think that, if not this bill, something very similar to it, or perhaps a committee substitute that goes into a little more depth is appropriate. I think the time is right and I plan on supporting legislation of this type." CHAIR JAMES asked Representative Vezey if he had any more comments. REPRESENTATIVE VEZEY replied no, it's been thoroughly debated. Number 0256 CHAIR JAMES indicated HB 338 would be held in the House State Affairs Standing Committee because it is not responsive to the public's needs.
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