Legislature(2015 - 2016)CAPITOL 106
03/15/2016 08:00 AM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB273 | |
| HB229 | |
| HB162 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 273 | TELECONFERENCED | |
| += | HB 229 | TELECONFERENCED | |
| += | HCR 15 | TELECONFERENCED | |
| *+ | HB 162 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 229-REPEAL ADMIN. REG. REVIEW COMMITTEE
8:16:19 AM
CHAIR LYNN announced that the next order of business would be
HOUSE BILL NO. 229 "An Act relating to regulation notice and
review by the legislature; and relating to the Administrative
Regulation Review Committee."
[Because of their length, some amendments discussed or adopted
during the meeting are found at the end of the minutes for HB
229. Shorter amendments are included in the main text.]
[Left pending from the House State Affairs Standing Committee
meeting of 2/4/16, was a motion to adopt Amendment 1, labeled
29-LS1104\A.1, Gardner, 2/3/16, with an objection for the
purpose of discussion by Representative Gruenberg. The pending
objection to the motion to adopt Amendment 1 was treated as
withdrawn and Amendment 1 was treated as adopted.]
REPRESENTATIVE KELLER moved to rescind the committee's actions
on Amendment 1 [labeled 29-LS1104\A.1, Gardner, 2/3/16]. There
being no objection, it was so ordered.
8:17:20 AM
REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature,
presented HB 229, as prime sponsor. He stated that HB 229
relates to regulation notice and review by the legislature. He
cited the state's declining revenues and the need to identify
ways to reduce the cost of the legislature and state government.
He further offered that the Administrative Regulation Review
Committee, although active and effective at times, was not
always so, and HB 229 proposes to abolish the Administrative
Regulation Review Committee and turn regulation review over to
other committees.
8:18:43 AM
CHAIR LYNN asked the sponsor if, after a regulation is drafted
by the department, it would be turned over to the committee of
jurisdiction.
REPRESENTATIVE CHENAULT confirmed that the department already
sends regulations to certain legislators for review; however,
under the proposed legislation a regulation would be sent to the
committee of jurisdiction. The committee of jurisdiction would
then have the option of scheduling a committee hearing on that
regulation.
8:19:51 AM
TOM WRIGHT, Staff, Representative Mike Chenault, Alaska State
Legislature, testifying on behalf of Representative Chenault,
prime sponsor of HB 229, said state statute requires that
regulations be forwarded to all incumbent legislators and
remarked that he is not sure if that occurs.
8:20:59 AM
REPRESENTATIVE KELLER moved to adopt Amendment 2, [labeled 29-
LS1104\A.4, Gardner, 3/10/16]. [Amendment 2 is provided at the
end of the minutes on HB 229.]
REPRESENTATIVE STUTES objected for purpose of discussion.
REPRESENTATIVE KELLER declared his support for HB 229 and
concurred with Representative Chenault's testimony. He
explained that the intent of Amendment 2 was to establish a
process for referring a regulation to a standing committee and
to clarify the powers of the chair in this process. He further
offered that the proposed amendment would give the chair the
power to delay implementation of a regulation until the
committee takes action on the regulation.
8:22:43 AM
CHAIR LYNN asked the sponsor how much money would be saved
through the proposed legislation.
REPRESENTATIVE CHENAULT responded that the fiscal note indicates
a savings of about $53,000.
8:23:51 AM
JIM POUND, Staff, Representative Keller, Alaska State
Legislature, stated that the intent of Amendment 2 was to
reinstate authority to the legislature in light of the Alaska
Supreme Court ruling on State v. A.L.I.V.E. Voluntary, which
reads that the legislature cannot annul a regulation by
resolution. He further explained that the court decision stated
that in order for the legislature to repeal a regulation, it had
to be done through a legislative process - that is, by an
introduced bill that passes through both houses and is sent to
the governor for signature. He offered that under Amendment 2,
a regulation would be sent to the presiding officers of each
house, who may pass it to the chair of the committee of
jurisdiction to decide if that regulation needs to be reviewed.
He voiced his belief that 95 percent of regulations are not
problematic but about 5 percent need modification. He stated
that under Amendment 2 if, after review, a committee was not
satisfied with the regulation, the committee could ask the
department to amend it to comply with legislative intent. If
the department refused, the committee could put the regulation
on hold until the regular session when the legislature could
attempt to repeal it through the legislative process. He said
that if the legislature fails to repeal the regulation through
legislation, implementation of the regulation would occur the
day after the end of the regular session of the legislature. If
the committee takes no action on a regulation within 35 days of
receipt, the department could proceed with implementation.
8:27:27 AM
REPRESENTATIVE VAZQUEZ commented that the 35-day limitation for
the committee response may be too short, especially considering
unavailability of legislators during interim.
MR. POUND commented that the average normal comment period on a
regulation is 40 days. The intent was to stay within that time
period.
REPRESENTATIVE VAZQUEZ voiced her concern that the procedure as
stated would suppress the legislature's ability to annul any
regulation at any time and would put the legislature in a
position subservient to the executive branch.
MR. POUND stated that the legislature was currently in that
position. He reminded the committee members that the
legislature has gone to court over regulations and lost.
8:31:22 AM
REPRESENTATIVE KELLER requested the sponsor speak to Amendment
2.
MR. WRIGHT deferred to Susan Pollard.
8:32:55 AM
SUSAN POLLARD, Chief Assistant, Legislation & Regulations
Section, Department of Law (DOL), stated that DOL had concerns
with the suspension provisions in Amendment 2. She paraphrased
page 2, Section 4 (e), by saying that in certain instances a
standing committee of the legislature could suspend a regulation
for a period of time based on when the next legislative session
is, and the legislature could choose to act or not act during
that time. She posited that the suspension part of the
amendment brings up concerns from the 1980 case, State v.
A.L.I.V.E. Voluntary. She explained that in the cited court
case, the Alaska Supreme Court considered a now repealed
regulation related to the power of the legislature to repeal a
regulation by way of concurrent resolution. She conceded that
the issue of that case was slightly different from the language
in the proposed amendment; however, she claimed that in State v.
A.L.I.V.E. Voluntary, the court considered the instances in
which the legislature can act to effectuate something which
affects the public and determined that moving by concurrent
resolution to suspend a regulation was not sustainable under the
Alaska Constitution. She noted that Amendment 2 attempts to
sidestep the State v. A.L.I.V.E. Voluntary ruling by including a
suspension provision as opposed to an annulment provision, but
does not, however, remove legal questions or the possibility of
litigation, depending on the situation.
8:37:03 AM
REPRESENTATIVE KELLER offered two comments for Ms. Pollard's
response: one, the process has yet to be established; and two,
the suspension in the proposed amendment would be for a time
specific and not an annulment.
MS. POLLARD responded that it is unknown at this point if the
proposed amendment's suspension of regulation would run afoul of
State v. A.L.I.V.E. Voluntary. She offered that currently the
legislature has the power to review and annul regulations by
changing statute.
8:38:53 AM
REPRESENTATIVE KREISS-TOMKINS asked Ms. Pollard to state again
the defendant in the case that she cited.
MS. POLLARD answered that it was a non-profit group referred to
by the acronym A.L.I.V.E.
REPRESENTATIVE KREISS-TOMKINS asked Ms. Pollard if the concern
was that suspension of a regulation until the end of the next
legislative session would effectively put the regulation in
limbo for 11 months and may have an adverse effect on the
public.
MS. POLLARD said DOL's concern is that whenever the legislature
acts outside of the legislative enactment process and the
constitutional requirements considered in the State v.
A.L.I.V.E. Voluntary court case, it runs the risk of a legal
challenge to that action. She conceded that there may be a
practical effect, alluded to by Representative Kreiss-Tomkins,
of regulations in long-term suspension and public perception
regarding those regulations; however, she contended that was not
the concern to which she referred.
8:41:37 AM
REPRESENTATIVE KREISS-TOMKINS offered that there are two
concerns to be addressed in consideration of Amendment 2: one,
the constitutional concern; and two, the pragmatic concern of
regulations in limbo impacting the public. He related it to a
hypothetical situation - a regulation passed by the Board of
Fisheries and suspended by the House Resources Standing
Committee, which would essentially put the regulation in limbo
until the adjournment of the next legislative session.
MS. POLLARD agreed that his example reflects the procedure
described in Section 4 of Amendment 2.
8:42:56 AM
REPRESENTATIVE KELLER asked if the concern was regarding a
possible lawsuit due to the delay in implementing regulations
and, if so, what the basis of that lawsuit would be.
MS. POLLARD opined that it is difficult to speculate. In State
v. A.L.I.V.E. Voluntary the Department of Revenue (DOR) was
enforcing a regulation against the plaintiff in the case.
REPRESENTATIVE KELLER asked Ms. Pollard to explain the
enforcement aspect - that is, if the legislature could delay the
enforcement of an existing regulation through suspension.
MS. POLLARD claimed that the issue of the status of the
regulation during suspension, including enforcement of the
regulation, is a question not yet answered and is the basis of
the hearing.
8:45:24 AM
REPRESENTATIVE KELLER attested that proposed regulation is not
law. He stated his belief that Alaskans have the right to the
process and the legislature is uniquely positioned to hear
concerns about regulations. He further contended that the
Department of Health & Social Service (DHSS) regulation -
disallowing guns in private care homes - raises constitutional
concerns, and when confronted DHSS's response was to extend
approval time for that regulation to outside of session time.
He recommended that the legislature have input into the
regulation process before a regulation takes effect.
MR. WRIGHT suggested that in the example Representative Keller
mentioned, the legislature has the prerogative to write statute
to nullify the regulation. In regard to Representative Kreiss-
Tomkins' concern, Mr. Wright recommended that the Board of Game
and the Board of Fisheries be exempt from the proposed amendment
because, in his opinion, regulations coming from end-of-season
decisions cannot wait a whole season for implementation. He
cautioned that there may be unknown consequences to Amendment 2
and careful thought and more work is needed before adoption.
8:49:20 AM
MR. WRIGHT, in response to Chair Lynn, stated that he has
concerns about Amendment 2, but supports the bill moving out of
committee.
REPRESENTATIVE KELLER stated that he supports Amendment 2 and
fears that HB 229 without it further distances the legislature
from the regulatory process.
8:52:08 AM
The committee took an at-ease from 8:52 a.m. to 8:55 a.m.
8:55:27 AM
MR. WRIGHT requested that the agencies look at Amendment 2 to
determine any fiscal impacts.
REPRESENTATIVE KELLER requested the chair schedule HB 229 for
the next House State Affairs Standing Committee meeting and
promised to consult with the agencies.
CHAIR LYNN announced that HB 229 was held over.
AMENDMENTS
The following amendments to HB 229 were either discussed or
adopted during the hearing. [Shorter amendments are provided in
the main text only.]
Amendment 2 [29-LS1104\A.4, Gardner, 3/10/16] (pending):
Page 1, line 1, following "legislature;":
Insert "providing for legislative review,
amendment, approval, disapproval, annulment, and delay
of proposed agency regulations;"
Page 1, lines 4 - 6:
Delete all material.
Page 1, line 7:
Delete "Sec. 2"
Insert "Section 1"
Renumber the following bill sections accordingly.
Page 2, lines 1 - 8:
Delete all material and insert:
"* Sec. 2. AS 24.05.182(a) is amended to read:
(a) A standing committee of the legislature
furnished notice of a proposed action under
AS 44.62.190 or 44.62.320(d) shall, consistent with
the committee's jurisdiction as provided in the
uniform rules of the legislature, review the proposed
regulation, amendment of a regulation, or repeal of a
regulation before the date the regulation is scheduled
by the department or agency to be adopted, amended, or
repealed.
* Sec. 3. AS 24.05.182(d) is amended to read:
(d) A standing committee that receives a copy of
a proposed regulation, amendment, or order of repeal
under AS 44.62.320(d) shall, within 35 days after
receipt of the proposed regulation, amendment, or
order of repeal, approve or disapprove the proposed
regulation, amendment, or order of repeal. If the
standing committee does not take action within 35 days
after receipt of the proposed regulation, amendment,
or order of repeal, the proposed regulation,
amendment, or order of repeal shall be considered
approved. If a standing committee determines that a
regulation, amendment to a regulation, or repeal of a
regulation does not properly implement legislative
intent and disapproves or returns the proposed
regulation, amendment, or order of repeal to the
department or agency, the standing committee's
findings shall, within 35 days after receipt of the
proposed regulation, amendment, or order of repeal, be
transmitted to the
(1) department or agency;
(2) regulations attorney at the Department
of Law; and
(3) senate secretary and the chief clerk of
the house of representatives [ADMINISTRATIVE
REGULATION REVIEW COMMITTEE].
* Sec. 4. AS 24.05.182 is amended by adding new
subsections to read:
(e) A proposed regulation, amendment, or order of
repeal that is disapproved under this section or that
is returned to the department or agency with a
proposed amendment, other than an emergency regulation
adopted under AS 44.62.250, shall be suspended until
the adjournment of the next regular legislative
session following the date of the committee's
disapproval. The notice of disapproval under this
section expires upon adjournment of the regular
legislative session during which the disapproval or
amendment was made or, if the legislature is not in
regular session, the next regular legislative session
following the date of disapproval, unless the
legislature enacts a law that annuls the proposed
regulation or order of repeal.
(f) If the standing committee that is reviewing a
proposed regulation, amendment, or order of repeal
under this section disapproves the regulation,
amendment, or order of repeal or proposes an amendment
to the regulation, amendment, or order of repeal, the
department or agency that proposed the regulation,
amendment, or order of repeal may request leave of the
standing committee to withdraw or amend the proposed
regulation, amendment, or order of repeal.
(g) In determining whether to approve,
disapprove, or amend a proposed regulation, amendment,
or order of repeal under this section, the standing
committee shall consider
(1) whether the absence of a regulation
would significantly harm or endanger public health,
safety, or welfare;
(2) whether a less restrictive regulation
would address the regulatory concerns while adequately
protecting the public;
(3) whether the regulation would directly or
indirectly increase the cost of any goods or services;
(4) whether the increased cost of
implementing and enforcing the regulation would be
more detrimental than the purpose of the regulation;
(5) whether the regulation was designed
solely for the purpose of the protection of the public
and would have the primary effect of protecting the
public; and
(6) any other factors the committee
considers to be appropriate."
Renumber the following bill sections accordingly.
Page 3, lines 4 - 7:
Delete all material.
Renumber the following bill sections accordingly.
Page 3, line 24, through page 4, line 19:
Delete all material.
Renumber the following bill sections accordingly.
Page 5, following line 5:
Insert a new bill section to read:
"* Sec. 10. AS 44.62.180 is amended to read:
Sec. 44.62.180. Effective date. A regulation or
an order of repeal filed by the lieutenant governor
becomes effective on the 30th day after the date of
filing unless
(1) otherwise specifically provided by the
statute under which the regulation or order of repeal
is adopted, in which event it becomes effective on the
day prescribed by the statute;
(2) it is a regulation prescribing the
organization or procedure of an agency, in which event
it becomes effective upon filing by the lieutenant
governor or upon a later date specified by the state
agency in a written instrument submitted with, or as
part of, the regulation or order of repeal;
(3) it is an emergency regulation or order
of repeal adopted under AS 44.62.250, in which case
the finding and the statement of the facts
constituting the emergency shall be submitted to the
lieutenant governor, together with the emergency
regulation or order of repeal, which, in that event
only, becomes effective upon filing by the lieutenant
governor or upon a later date specified by the state
agency in a written instrument submitted with, or as
part of, the regulation or order of repeal;
(4) a later date is prescribed by the state
agency in a written instrument submitted with, or as
part of, the regulation or order of repeal;
(5) a standing committee of the legislature
disapproves the regulation or returns it to the
department or agency with a proposed amendment, under
AS 24.05.182, in which case, if the proposed
regulation, amendment, or order of repeal takes
effect, it takes effect on the later of
(A) adoption by the agency of an amendment
proposed by a standing committee of the legislature;
or
(B) one day following adjournment of both
houses of the legislature as provided under
AS 44.62.325."
Renumber the following bill sections accordingly.
Page 5, line 31, following "legislators":
Insert "and to the presiding officer of each
house"
Page 6, line 4, through page 9, line 9:
Delete all material and insert:
"* Sec. 12. AS 44.62.190(b) is amended to read:
(b) If the form or manner of notice is
prescribed by statute, in addition to the requirements
of filing and furnishing notice under AS 44.62.010 -
44.62.300, or in addition to the requirements of
filing and mailing notice under other sections of this
chapter, the notice shall be published, posted,
mailed, filed, or otherwise publicized as prescribed
by the statute. In the notice furnished to the
legislature under AS 44.62.190(a)(6), new language
added to an existing regulation shall be underlined,
and language deleted from an existing regulation shall
be bracketed and capitalized.
* Sec. 13. AS 44.62.195 is amended to read:
Sec. 44.62.195. Fiscal notes on regulations. If
the adoption, amendment, or repeal of a regulation has
an economic effect on a department, agency, or person,
the proposed regulation or order of repeal must
include a fiscal note prepared by the department or
agency in accordance with this section [WOULD REQUIRE
INCREASED APPROPRIATIONS BY THE STATE, THE DEPARTMENT
OR AGENCY AFFECTED SHALL PREPARE AN ESTIMATE OF THE
APPROPRIATION INCREASE FOR THE FISCAL YEAR FOLLOWING
ADOPTION, AMENDMENT, OR REPEAL OF THE REGULATION AND
FOR AT LEAST TWO SUCCEEDING FISCAL YEARS].
* Sec. 14. AS 44.62.195 is amended by adding a new
subsection to read:
(b) A fiscal note required under this section
must include, where applicable,
(1) a determination of the present need for
the regulation and the expected need for the
regulation;
(2) a determination of the costs and
benefits of the regulation and an explanation by the
department or agency of whether the proposed
regulation is the most cost-effective, efficient, and
feasible means of allocating public and private
resources to achieve the stated purpose;
(3) the effect of the regulation on market
competition;
(4) the effect of the regulation on the
cost of living, employment, and doing business in the
geographical regions where the regulation would have
the greatest effect;
(5) the source of revenue to implement and
enforce the regulation;
(6) a summary of the short-term and long-
term economic effects of the regulation, including an
analysis of the persons or groups that would bear the
costs of the regulation and the persons or groups that
would benefit directly or indirectly from the
regulation;
(7) the difficulties the department or
agency encountered, if any, in estimating the persons
or groups that would benefit from the regulation or
bear the costs of the regulation;
(8) the effect that adopting or failing to
adopt the regulation would have on the environment and
public health.
* Sec. 15. AS 44.62.245(c) is amended to read:
(c) The state agency shall also send the notice
described in (b)(2) of this section to
(1) a person who has placed the person's
name on a distribution list kept by the agency that
lists persons who want to receive the notice; the
agency may allow a person to request that distribution
of the notice be by electronic means and shall honor
that request if appropriate means are available;
(2) the regulations attorney in the
Department of Law; and
(3) the presiding officer of each house of
the legislature [THE MEMBERS OF THE ADMINISTRATIVE
REGULATION REVIEW COMMITTEE].
* Sec. 16. AS 44.62.320(b) is amended to read:
(b) At the same time a regulation is filed by
the lieutenant governor, the lieutenant governor shall
submit the regulation to the presiding officer of each
house of the legislature [CHAIRMAN AND ALL MEMBERS OF
THE ADMINISTRATIVE REGULATION REVIEW COMMITTEE FOR
REVIEW UNDER AS 24.20.400 - 24.20.460] together with
the fiscal information required to be prepared under
AS 44.62.195.
* Sec. 17. AS 44.62.320(c) is amended to read:
(c) At the same time as a regulation is
submitted to the governor under AS 44.62.040(c), the
state agency shall submit the regulation to the
presiding officer of each house of the legislature
[CHAIR AND ALL MEMBERS OF THE ADMINISTRATIVE
REGULATION REVIEW COMMITTEE FOR REVIEW UNDER
AS 24.20.400 - 24.20.460] together with the fiscal
information required to be prepared under
AS 44.62.195.
* Sec. 18. AS 44.62.320(d) is amended to read:
(d) Within 10 days after receiving a regulation
under (b) or (c) of this section or under
AS 44.62.190(a)(6), the presiding officer of each
house of the legislature shall provide copies of the
regulation to the standing committee with jurisdiction
over the subject matter of the regulation as provided
in the uniform rules of the legislature for review
under AS 24.05.182 [, THE CHAIR OF THE ADMINISTRATIVE
REGULATION REVIEW COMMITTEE MAY SUBMIT TO THE
GOVERNOR, BY LEGISLATIVE MEMORANDUM OR LETTER,
COMMENTS ON THE REGULATION].
* Sec. 19. AS 44.62 is amended by adding a new
section to article 7 to read:
Sec. 44.62.325. Legislative annulment of
regulations. (a) The legislature may, in the regular
legislative session during which a disapproval or
amendment is made or, if the legislature is not in
regular session, the next regular session following
the disapproval or amendment of a proposed regulation,
amendment, or order of repeal by a standing committee
under AS 24.05.182, annul the proposed regulation,
amendment of the proposed regulation, or order of
repeal by law.
(b) If the legislature, following adjournment of
the regular legislative session during which a
disapproval or amendment is made or, if the
legislature is not in regular session, the next
regular session following disapproval or amendment of
a proposed regulation, amendment, or order of repeal
by a standing committee under AS 24.05.182, has not
enacted a law that annuls the proposed regulation,
amendment of the proposed regulation, or order of
repeal, the proposed regulation, amendment of the
proposed regulation, or order of repeal takes effect
one day after adjournment of both houses of the
legislature."
Renumber the following bill sections accordingly.
Page 9, line 13:
Delete "(AS 44.62.040 - 44.62.319) [AS 44.62.040
- 44.62.320]"
Insert "(AS 44.62.040 - 44.62.320)"
Page 9, line 20:
Delete "AS 24.05.182(b), 24.05.182(c),
24.05.182(d);"
Page 9, line 22:
Delete "AS 40.25.120(a)(11); and AS 44.62.320"
Insert "and AS 40.25.120(a)(11)"
CHAIR LYNN announced that HCR 15 would be rescheduled for the
next House State Affairs Standing Committee.
[HCR 15 was held over.]