Legislature(2003 - 2004)
05/13/2003 08:09 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 295-REGULATIONS: NOTICE AND DISTRIBUTION CHAIR WEYHRAUCH announced that the first order of business would be HOUSE BILL NO. 295, "An Act relating to the publishing and furnishing of certain public notices regarding regulations or rules of certain state agencies; relating to distribution of the Alaska Administrative Code, Alaska Administrative Register, and supplements to the code or register; and providing for an effective date." Number 0340 DEBORAH BEHR, Assistant Attorney General, Legislation & Regulations Section, Civil Division (Juneau), Department of Law, highlighted that there will be some cost savings associated with HB 295, as reflected in the fiscal note. The legislation allows all agencies to use an abbreviated newspaper notice rather than the detailed notice. Furthermore, the legislation allows [the department] to furnish, upon request, electronic notice for certain [documents]. The legislation also allows the on-line public notice system as the primary means for giving information for certain "business and commerce programs." Finally, the legislation would require that local governmental entities that want copies of regulations have to request a copy and pay for the cost of it. The cost to local governmental entities is estimated to be less than $600. Ms. Behr noted that the aforementioned information is already available on the Department of Law's homepage. MS. BEHR, in response to Chair Weyhrauch, explained that the on- line public notice system is geared toward businesses and industries and thus if there was the need to go to court, there would be no dispute that these folks have computers. She pointed out that the longevity bonus and the permanent fund dividend aren't on the on-line public notice system because it would be difficult to ascertain that those groups have access to a computer. Therefore, the legislation is a pilot project that is limited to business and commerce programs. Number 0615 CHAIR WEYHRAUCH turned to Section 13 regarding the failure to furnish notice. He related his understanding that if the state is found to have failed to furnish notice, the state would be held harmless. MS. BEHR pointed out that the provision in Section 13 has been in existing law since the Administrative Procedures Act (APA) was enacted. She explained that if an individual requests that a state agency mail him/her a notice of a regulation, but for some reason the individual doesn't receive the notice. In that case, the entire regulation project doesn't fail because there was general notice from the newspaper and/or the on-line public notice system. Therefore, the language refers to the individual not receiving the notice that he/she requested. Number 0733 REPRESENTATIVE SEATON said that he doesn't have a problem with the change in the way in which the notice is done. However, he asked if anything in this legislation reduces or eliminates the notice requirement for regulations. MS. BEHR replied no and specified that this legislation merely makes the on-line public notice system the primary means of notice for those business programs previously described. The same information will continue to be provided, although it will be in a different format. In further response to Representative Seaton, Ms. Behr confirmed that nothing in this legislation changes the length of notice. Currently, a commissioner can adopt a regulation 30 days after giving notice in the newspaper. Number 0830 REPRESENTATIVE HOLM turned to the change in Section 3 and inquired as to why the language "each judicial district of" was eliminated. MS. BEHR explained that if notice is given in one newspaper, then [the notice has to be given in] one judicial district. She further explained that she would advise [the Alaska Teachers' Retirement Board] that it has to choose a newspaper of general circulation that's available throughout the state. She noted that the teachers' retirement law in this state has to be uniform, and therefore one newspaper of general circulation would be chosen for the notice. From her 11 years of regulation experience, she related that most people find their notice through individual mailings or professional associations. Generally, newspaper notice isn't the best notice for people, although it helps with regard to legal notice. CHAIR WEYHRAUCH asked if there would be any deference with having notices published only in the Anchorage newspaper. MS. BEHR explained that the "newspaper of general circulation" is a floating standard, and therefore the courts would review what is appropriate under the circumstances. For example, if the notice was regarding Sitka or Juneau fishing, the newspaper of general circulation may be the Juneau newspaper. She clarified that nothing in this legislation or current law would result in [using] one newspaper. In further response to Chair Weyhrauch regarding a definition of "newspaper of general circulation", Ms. Behr said that there is case law. There have been cases in the zoning area, although there has not been a test case on "newspaper of general circulation" in the regulations area. She agreed with Chair Weyhrauch in that there is some discretion given to the agency with regard to where the notice is published. Number 1012 REPRESENTATIVE LYNN inquired as to the section of HB 295 that relates to the longevity bonus. MS. BEHR clarified that nothing in the legislation directly impacts the longevity bonus program. She explained that the longevity bonus program isn't a program that would be chosen to go to electronic [notices] because she didn't believe she could go to a judge and say that everyone in the program has a computer. REPRESENTATIVE SEATON turned to the matter of the web site being available for documentation of notice. He asked if the log site is archived every day or is a printed copy kept as a record. MS. BEHR answered that the Office of the Lieutenant Governor operates the Alaska On-Line Public Notice System, which has an archival feature. However, if HB 295 passes, Ms. Behr said she will give training to state agencies specifying that they print off the notices and do an affidavit at that time. Number 1120 REPRESENTATIVE CRAWFORD remarked that he liked the streamlining, although he has a lot of trepidation that there will be less notice for oil and gas and pipeline regulation. He charged the department to do its best to ensure that people receive notice as they should. CHAIR WEYHRAUCH commented that people have used newspapers for public notice information and advise for centuries. Public notice is a critical component of the public's right to know what government is doing. He indicated his belief that everyone in the legislature desires public notice regarding government's doings. MS. BEHR said that's true and noted that the statutes are framed in that manner. Any important action requires public notice, she said. REPRESENTATIVE SEATON moved to report HB 295 out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GRUENBERG objected and offered [Amendment 1] as follows [original punctuation provided]: Delete section 27(page 12, line 29 through page 13, lines 5) REPRESENTATIVE GRUENBERG explained that Section 27 addresses the setting of rates for service providers and thus involves [regulations related to] adult public assistance, temporary cash assistance, and services for needy families. He expressed concern that there will be less public notice for the aforementioned types of regulations that impact many people. MS. BEHR, in response to Chair Weyhrauch, said that she didn't now whether such an amendment would change the fiscal note, although she didn't anticipate that it would have any significant impact. Ms. Behr explained that [Section 27] is only related to rate setting of facilities, such as hospitals and nursing homes. The Medicaid rate executive director assured her that these programs have ready access to computers. Historically, those who attend the public hearings and comment on rate setting are facility representatives. REPRESENTATIVE GRUENBERG asked if any representatives of clients or client groups have shown any interest in these rates. MS. BEHR replied yes and informed the committee that in the past Alaska Legal Services has been a strong advocate for indigent people. However, she couldn't recall whether [Alaska Legal Services] has been involved at the level of rate setting, although she said it has been very active in the area of eligibility. REPRESENTATIVE GRUENBERG expressed concern if there is a change in a facility in one part of the state and the [public notice] is provided in a newspaper in another location. In the aforementioned situation, the client groups may not receive the notice. CHAIR WEYHRAUCH recalled that in such a situation, the failure of the agency to provide notice to an interest group wouldn't void the action the administrative agency took. MS. BEHR agreed and pointed out that most interest groups receive notice in several forms, such as direct mailings. Furthermore, most of the departments do a good job on advocacy, such as having town hall meetings or meetings with interest groups. Also, the hospital association is a strong advocate of this. Again, all that [Section 27] does is make on-line public notice the primary means of receiving notice. REPRESENTATIVE GRUENBERG asked if Ms. Behr could say that none of the client groups of which she is aware would be adversely impacted if Section 27 was left in HB 295. MS. BEHR replied that she didn't believe anyone could say that. In her experience, especially in the health and social services area, people who need the services are so busy trying to get their lives together that they aren't the group that comments on regulations. Number 1591 REPRESENTATIVE GRUENBERG maintained his motion to adopt Amendment 1. REPRESENTATIVE HOLM objected. REPRESENTATIVE LYNN objected and said he couldn't imagine that anyone [Section 27] would apply to would fail to receive the notice they should have. He expressed the need to streamline [the public notice process]. CHAIR WEYHRAUCH turned attention to the new language in Section 27 on page 13, lines 2-5. He asked if that language means requirement for publication on the state's web page. MS. BEHR pointed out that the qualifier is the [AS 44.62].190(a)(7). She informed the committee that the APA contains an odd provision. For example, if there is a mining journal, it may be the newspaper of general circulation. She mentioned that this is a provision of law that's rarely used. Number 1735 REPRESENTATIVE SEATON surmised that regulations to which this pertains don't have anything to do with the services for the facilities but the rates of reimbursement to the facilities. MS. BEHR related her understanding that it's limited by the sites that are specified. She noted that much care was taken not to move into the eligibility of welfare or individual services because not everyone in the state has a home computer. The legislation is designed to speak to business-to-business commerce, which includes hospitals. CHAIR WEYHRAUCH reminded the committee of the motion to adopt Amendment 1 and the objections to it. A roll call vote was taken. Representatives Crawford, Gruenberg, Seaton, and Weyhrauch voted in favor of Amendment 1. Representatives Lynn, Holm, and Dahlstrom voted against it. Therefore, Amendment 1 was adopted by a vote of 4-3. Number 1845 REPRESENTATIVE SEATON moved to report HB 295, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 295(STA) was reported from the House State Affairs Standing Committee.