Legislature(2003 - 2004)

05/13/2003 08:09 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                       
                                                                                                                                

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