Legislature(1997 - 1998)
05/05/1998 03:40 PM Senate STA
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CSHB 264(FIN) - NEGOTIATED REGULATION MAKING
CHAIRMAN GREEN brought CSHB 264(STA) before the committee.
Number 485
REPRESENTATIVE JEANNETTE JAMES, prime sponsor of HB 264, read the
following sponsor statement into the record:
"House Bill 264 enables and encourages negotiated regulation/rule
making. Currently negotiated regulation making is in use by the
Federal Government, Montana and Nebraska and several other states.
"The citizens of Alaska are clamoring for the Legislature to do
something about the regulation process; negotiated regulation
making addresses the issue on point.
"Negotiated regulation making is used only in cases involving very
complex or controversial regulations.
"Negotiated regulation is a voluntary process for drafting
regulations that brings together those parties who would be
significantly impacted by a regulation (rule), including the
Government, to reach consensus on some or all of its aspects before
the rule is formally published as a proposal. An impartial
mediator is used to facilitate intensive discussions among the
participants, who operate as a committee open to the public.
"Regulations drafted using this process tend to be more technically
accurate, clear and specific, and less likely to be challenged in
litigation than are rules drafted by the agency alone without input
from outside parties. The Administrative Procedures Act notices
process is unchanged.
"The negotiated regulation making process costs more money at the
front end than the traditional approach (e.g. the added cost for a
facilitator). In addition, agency personnel must work closely as
a team with outside party representatives and their time must be
dedicated to the project if it is to succeed. The advantages
clearly outweigh these considerations, however. Because
representatives of all the interested parties draft the regulation,
the formal process of public notice and comments is generally very
smooth and very few comments and concerns are raised in that
process. More importantly, lengthy regulation litigation is
hopefully generally eliminated and compliance with the rule is
believed to be much higher. Thus, agency long-term costs of
litigating rules and enforcing standards are sharply reduced.
"There is no fiscal impact for this piece of legislation and the
reason for that is that it is purely voluntary. It is assumed the
agencies will choose this form whenever it appears that it is going
to be beneficial to them."
REPRESENTATIVE JAMES noted there was a draft State Affairs SCS for
the committee's consideration which addresses concerns expressed by
the Alaska State Chamber of Commerce.
Number 520
SENATOR MACKIE moved the adoption of SCS CSHB 264(STA), version
"R." Hearing no objection, the motion carried.
Number 547
CHAIRMAN GREEN commented that she thinks the aim of the legislation
is good, but she is concerned that if the selection of the
membership is done by the agency head and then they are given the
information from the agency head it could be biased even though
there are volunteers sitting in on it. She is also concerned that
this will present a delay rather than efficiency or timeliness in
the process.
TAPE 98-20, SIDE B
Number 585
DOUGLAS MERTZ, representing the Prince William Sound Regional
Citizens Advisory Council, said the original legislation would have
allowed a commissioner or agency head to create a totally biased
committee, one which was front loaded to that commissioner's own
special interest so that the entire regulation writing process
could be biased throughout its length. He added that the current
version of the bill is much better than the original version, but
the council still has concerns with the legislation. This version
still allows the members of the regulation writing committee to
refuse to hear testimony or refuse to consider written material
from other public interests who are not on the committee. It gives
them immunity from the Executive Branch Ethics Act and it makes the
appointment and creation of this immune from judicial review.
Mr. Mertz said if the committee passes out this legislation, the
council urges to do it without any backsliding toward the original
version, and to do it with a clearly stated intent that the new
process is to be used without any kind of biasing on the front end
or favoring of a particular interest by a commissioner.
Number 559
CHAIRMAN GREEN commented that she shares some of Mr. Mertz's
concerns, but she wasn't sure that this legislation was making the
process any worse.
MR. MERTZ said the only ways in which this a step backwards to
what exists now is that the appointment of this committee is immune
from judicial review and that the state employees who are part of
it would be exempt from the Executive Branch Ethics Act.
Number 535
SENATOR MACKIE inquired if the Administration supports the
legislation.
DEBORAH BEHR, Assistant Attorney General, Department of Law, said
throughout the legislative process she has worked closely with the
sponsor and the staff, and this draft is totally workable for the
Administration. She emphasized that it is a voluntary process to
be used in appropriate cases.
Number 525
PAM LABOLLE, President, Alaska State Chamber of Commerce, stated
their concerns that this be decided at the commissioner level, that
a time limit be established, the grants and gifts language be
deleted, as well as continuity of membership on the committee have
all been addressed in the State Affairs SCS.
There being no further testimony on HB 264, CHAIRMAN GREEN stated
she would entertain a motion to move the legislation out of
committee.
Number 515
SENATOR MACKIE moved SCS CSHB 264(STA) and the accompanying zero
fiscal note be passed out of committee with individual
recommendations. Hearing no objection, it was so ordered.
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