Legislature(1995 - 1996)

05/04/1995 02:45 PM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  CS FOR HOUSE BILL NO. 130(FIN) am(reengrossed)                               
                                                                               
       An Act relating to the  adoption, amendment, and repeal                 
       of regulations.                                                         
                                                                               
  Co-chairman   Halford  directed   that   CSHB  130   (Fin)am                 
  (reengrossed) be brought on for discussion.  BRUCE CAMPBELL,                 
  aide to  Representative Kelly,  came before  committee.   He                 
  explained  that the proposed  bill has  a few,  simple goals                 
  relating  to  the Regulation  Procedures  Act.   Language in                 
  secs. 1, 2,  3, and 4 closes a loop in the process involving                 
  the Legislative Regulation  Review Committee and establishes                 
  the  Governor  as the  key  elected official  overseeing the                 
  regulation process.  Secs. 5 and 6 deal with public comment.                 
  Sec. 5  strengthens public hearing requirements  and directs                 
  agencies to pay additional attention to factual, substantive                 
  comments as well as public testimony regarding the cost of a                 
  proposed  regulation.   While agency staff  has considerable                 
  expertise  in  terms  of the  benefits  of  regulations, the                 
  private sector  has the most expertise in issues relating to                 
  costs.  Sec. 6 incorporates a new section requiring agencies                 
  to report use or rejection of public comments.  Secs.  7, 8,                 
  and 9 are housekeeping.  Sec. 10 deals specifically with the                 
  Dept. of Environmental Conservation  and asks the department                 
                                                                               
                                                                               
  to consider alternate methods of  complying with the statute                 
  while paying close  attention to costs.   The effective date                 
  ensures  that  the  proposed  bill  applies  to  regulations                 
  noticed after the enactment date.                                            
                                                                               
  Discussion  followed between Senator Donley and Mr. Campbell                 
  regarding application of  Secs. 1 through  4.  Mr.  Campbell                 
  noted  application  to  the  Legislative  Regulation  Review                 
  Committee under Title 24 and  the requirement that committee                 
  comments  be  provided  to  both   the  Governor  and  state                 
  agencies.  A loop is thus  created between the committee and                 
  the Governor.                                                                
                                                                               
  Mr. Campbell further noted  that under Sec. 3 language,  the                 
  Governor  may  return  regulations  to  an  agency  for  two                 
  reasons:                                                                     
                                                                               
       1.   If they  are inconsistent with  faithful execution                 
  of law.                                                                      
                                                                               
       2.   Agencies have need  to respond to specific  issues                 
  raised         by   the   Legislative    Regulation   Review                 
                 Committee.                                                    
                                                                               
  The Governor may delegate  this authority solely to  the Lt.                 
  Governor.                                                                    
                                                                               
  In  response to a further  question from Senator Donley, Mr.                 
  Campbell explained that the Regulation Review Committee will                 
  receive a  copy  of proposed  regulations.   At the  present                 
  time, the Committee merely  receives notice that regulations                 
  will be forthcoming.  The general theme of the proposed bill                 
  is that issues  brought to  legislative attention are  those                 
  raised  by  the public.    While  the Governor  now  has the                 
  authority to deny  adoption of proposed regulations,  HB 130                 
  would include the  Regulation Review Committee in  the loop,                 
  as  far as  comments are  concerned, up  to  the end  of the                 
  public notice  period.  It  allows the committee  to address                 
  concerns  directly  to the  Governor  rather than  through a                 
  commissioner.                                                                
                                                                               
  Responding to a question from Senator Phillips regarding the                 
  impact  of  passage of  HJR 1,  Mr.  Campbell said  that the                 
  resolution would make the system work better.  It brings the                 
  legislature  further  into  the  loop.     HB  130  contains                 
  preparatory language to assist in the process.                               
                                                                               
  JOHN LINDBACK, Chief of Staff,  Office of the Lt.  Governor,                 
  next  came  before   committee.    He  explained   that  the                 
  administration has taken a neutral position on the bill, but                 
  he  added  that, personally,  the  Lt.  Governor is  on  the                 
  "positive side of neutral."  Of chief consideration are cost                 
  aspects.     The  administration  is   very  interested   in                 
  regulatory reform and looks forward to addressing the matter                 
                                                                               
                                                                               
  in  the  interim, in  concert  with  the  legislature.    As                 
  attempts were made to amend the bill in previous committees,                 
  it was determined that amendments  are sometimes more costly                 
  than  expected.    Mr.  Lindback  deferred comment  on  cost                 
  aspects to staff from the Dept. of Law.                                      
                                                                               
  Mr. Lindback agreed that  the proposed bill is  a reasonable                 
  approach to addressing weaknesses in the current process:                    
                                                                               
       1.   It  is closer to the  public perception of how the                 
            regulation process works.   The Office of  the Lt.                 
            Governor is  occasionally contacted by  people who                 
            are under the impression that the Lt. Governor can                 
            simply  not  adopt  regulations  sent to  her  for                 
            filing  based on  how she  feels about  them.   In                 
            fact, filing is a perfunctory ministerial function                 
            at this time.                                                      
                                                                               
       2.   It builds  in extra  steps to  ensure that  public                 
  comment        is    taken    into    consideration   before                 
                 regulations are adopted.                                      
                                                                               
  In  his  closing  comments,  Mr.  Lindback  asked  that  the                 
  administration  be allowed  the  opportunity  to review  its                 
  fiscal notes prior to passage of the bill from committee, if                 
  it is amended.                                                               
                                                                               
  DEBORAH BEHR, Regulations Attorney, Dept.  of Law, next came                 
  before committee.   She  said she  had reviewed  the current                 
  version of the bill and has no legal problems with it.   She                 
  attested  to  having  worked closely  with  the  sponsor and                 
  expressed thanks for his cooperation in developing  language                 
  that will work for the administration.                                       
                                                                               
  Directing attention to page 5, line 16, Ms. Behr voiced need                 
  to  delete "consideration"  and  insert  "attention."    She                 
  referenced page 3, line 29, and  noted use of "attention" in                 
  that instance and need for  parallel language on both pages.                 
  Parallel  construction  will  clarify  that  the  Dept.   of                 
  Environmental  Conservation will  not  have  to conduct  two                 
  types of review.                                                             
                                                                               
  Ms. Behr acknowledged  that the Governor presently  plays an                 
  active  role in  regulations.   Some  delay  in adoption  of                 
  regulations will result  from passage  of the proposed  bill                 
  because of review by the Office of the Governor.                             
                                                                               
  Recording of  the use of public  comments (Sec. 6)  is a new                 
  function  for state  government.  At  the present  time, the                 
  Alaska Administrative Procedures Act requires that the state                 
  agency consider all  comments.  There is,  however, no track                 
  record when  a commissioner accepts or  rejects regulations.                 
  Ms. Behr  referenced fiscal  notes associated  with the  new                 
  function.                                                                    
                                                                               
                                                                               
  Speaking  to  cost  compliance,  Ms.  Behr noted  that  bill                 
  provisions direct state agencies to ask those who fall under                 
  the proposed regulations what costs are  likely to be and to                 
  pay serious attention to those costs.                                        
                                                                               
  The  final  section deals  with  the Dept.  of Environmental                 
  Conservation  and asks  that  the  department  give  special                 
  consideration to comments relating to the cost of compliance                 
  and alternative methods.   The  department does not  believe                 
  this provision will be problematic.                                          
                                                                               
  Discussion  followed  concerning the  number  of regulations                 
  dealt with in a year.                                                        
                                                                               
  Senator  Phillips  MOVED  for  adoption  of the  recommended                 
  change  at  page 5,  line  16, substituting  "attention" for                 
  "consideration."    No  objection  having  been  raised, the                 
  amendment was ADOPTED.                                                       
                                                                               
  Senator Donley directed attention to  a subsequent amendment                 
  which he explained  was earlier  added to other  legislation                 
  relating to regulations.   He noted that under the  existing                 
  regulation  system,  the  administration   merely  publishes                 
  notice of what  it intends to adopt.   It does not  show the                 
  actual  language.    The administration  then  takes  public                 
  comment and thereafter  adopts "almost anything  they want."                 
  It  does  not have  to  provide  notice  or  conduct  public                 
  hearings  if a  subsequent  change is  made.   The  proposed                 
  amendment  requires  that   if  substantial  or  significant                 
  changes are made  in the original  intent of the  regulation                 
  identified in the notice, the  administration is required to                 
  re-notice the regulation and provide copies of what is posed                 
  for adoption.   Exemptions are similar  to those worked  out                 
  several years  ago relating to  special boards  such as  the                 
  board  of  fisheries,  board of  game,  commercial fisheries                 
  entry  commission,  emergency  regulations,  or  regulations                 
  adopted  to  meet  federal  requirements.   In  his  closing                 
  comments,    Senator    Donley    acknowledged   that    the                 
  administration would probably  oppose the  amendment.    Ms.                 
  Behr advised that the amendment would be extremely expensive                 
  since it would  require  "new  rounds of public comments  on                 
  virtually all regulations."   As an  example, she cited  fee                 
  regulations which would require a new public comment process                 
  for each fee  change.  The administration could  find itself                 
  in a continuous cycle of redoing regulations and not meeting                 
  budget obligations.  She suggested  that if the amendment is                 
  of interest  to  committee, she  be allowed  time to  obtain                 
  fiscal notes from all departments.   Ms. Behr noted that the                 
  public can bring court  challenges against regulations  that                 
  are not properly noticed.                                                    
                                                                               
  Co-chairman  Halford asked  if  the proposed  amendment  was                 
  considered when the bill was before prior committees.  Bruce                 
                                                                               
                                                                               
  Campbell explained that  amending language is close  to that                 
  in an earlier "Z" version of the bill.  That bill is not now                 
  before  committee, mostly  because  of cost  considerations.                 
  The amendment  is similar  to  ideas proposed  by the  State                 
  Chamber of Commerce for discussion during the summer.  It is                 
  the  kind  of  concept that  might  well  fit  in a  broader                 
  package.    Mr.  Campbell  stressed  that the  goal  of  the                 
  proposed bill is not to reek havoc within the system  but to                 
  try  to find small ways  to make things  work.  The proposed                 
  amendment is  a  much  more serious  fix  than  the  sponsor                 
  initially intended.                                                          
                                                                               
  Co-chairman  Halford voiced  his belief that  the regulatory                 
  standard should be changed to provide that instead of merely                 
  being reasonable to  implement a statute, a  regulation must                 
  be essential to implementation of the express purpose of the                 
  statute.                                                                     
                                                                               
  Senator Donley said he would not offer the amendment at this                 
  time.    He   further  expressed  support   for  Co-chairman                 
  Halford's comments regarding need for  overall change in the                 
  process.                                                                     
                                                                               
  Senator Sharp MOVED for  passage of SCS CSHB 130  (Fin) with                 
  individual  recommendations  and accompanying  fiscal notes.                 
  No  objection having  been  raised, SCS  CSHB 130  (Fin) was                 
  REPORTED  OUT of  committee with  18  zero fiscal  notes and                 
  notes  from  the  following  departments showing  associated                 
  costs:                                                                       
                                                                               
       Gov/Lt. Gov.                            $73.7                           
       DEC (Solid Waste)                        10.0                           
       DEC (Wastewater)                          4.5                           
       DEC (Drinking Water)                      6.0                           
       DEC (Seafood Sanitation)                  6.5                           
       DEC (Palmer Lab.)                         3.2                           
       DPS (Commissioner's Office)               5.0                           
       DOR                                      20.0                           
                                                                               
  Co-chairmen  Halford and  Frank  and  Senators Phillips  and                 
  Sharp  signed  the   committee  report  with  a   "do  pass"                 
  recommendation.  Senators Donley, Rieger, and Zharoff signed                 
  "no recommendation."                                                         
                                                                               

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