Legislature(2013 - 2014)CAPITOL 120
03/21/2013 01:00 PM House ADMINISTRATIVE REGULATION REVIEW
| Audio | Topic |
|---|---|
| Start | |
| Review of Alaska's Administrative Regulations Process and Possible Improvements | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
ADMINISTRATIVE REGULATION REVIEW COMMITTEE
March 21, 2013
1:04 p.m.
MEMBERS PRESENT
Representative Lora Reinbold, Chair
Senator Cathy Giessel, Vice Chair
Representative Geran Tarr
Senator Gary Stevens
MEMBERS ABSENT
Representative Mike Hawker
Senator Hollis French
COMMITTEE CALENDAR
REVIEW OF ALASKA'S ADMINISTRATIVE REGULATIONS PROCESS AND
POSSIBLE IMPROVEMENTS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
DEBORAH BEHR, Chief Assistant Attorney General - Statewide
Section Supervisor
Legislation & Regulations Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: Reviewed Alaska's administrative
regulations process.
TERRI LAUTERBACH, Legislative Counsel
Legal Services
Legislative Research and Legal Services
Legislative Affairs Agency
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Reviewed the legislative regulations review
process.
ACTION NARRATIVE
1:04:35 PM
CHAIR LORA REINBOLD called the Administrative Regulation Review
Committee meeting to order at 1:04 p.m. Representative Reinbold
and Senators Giessel and Stevens were present at the call to
order. Representative Tarr arrived as the meeting was in
progress.
CHAIR REINBOLD began by noting that often the public is not
aware that the Alaska Administrative Code (AAC) has the force of
law until it impacts their business, profession, or life.
Therefore, the goal of this committee is to improve the process
by providing more transparent information to the public and
communities.
^Review of Alaska's Administrative Regulations Process and
Possible Improvements
Review of Alaska's Administrative Regulations Process and
Possible Improvements
1:05:52 PM
CHAIR REINBOLD announced that the only order of business would
be review of Alaska's Administrative regulations process.
1:06:11 PM
DEBORAH BEHR, Chief Assistant Attorney General - Statewide
Section Supervisor, Legislation & Regulations Section, Civil
Division (Juneau), Department of Law, directed attention to the
document in the committee packet entitled "Presentation by
Department of Law, Regulations Section," which includes a flow
chart entitled "Steps in the Regulation Adoption Process" and
the statutory definition of "regulation." Ms. Behr related that
the first question she receives is regarding what are
regulations, many of which she noted come directly from the
courts. The statutory definition of regulation is found in the
Administrative Procedures Act (APA), AS 44.62.640, which she
follows when reviewing regulations and advising agencies. She
highlighted that Alaska has probably one of the broadest
definitions of regulation in the nation. The broad nature is
good for consumers, although it means that many things have to
go through the [regulation] process. The definition specifies
that a regulation is "every rule, regulation, order, or standard
of general application", which means that it's a standard of
general use. For instance, if a state agency uses a standard
for a grant program that's not in statute, the standard has to
be in regulation or some place so that the public will be aware,
have a right to comment, and know that will be applied when
grants are awarded. The second standard of the definition of
"regulation" specifies that these standards are adopted by the
State of Alaska. The definition of "regulation" specifies that
the goal of a regulation is "to implement, interpret, or make
specific the law enforced or administered by it". Therefore,
there must be a state statute that the legislature wanted a
state agency to interpret or implement. Ms. Behr highlighted
that the legislature provided clear guidance for state agencies
when in doubt and regardless of name, a regulation is covered by
the definition in AS 44.62.640 when it affects the public or is
used by the agency in dealing with the public. Therefore, the
definition of "regulation" includes manuals, policies,
instructions, guides to enforcement, interpretative bulletins,
interpretations, and the like. Furthermore, different language
can't be used to avoid or circumvent this chapter. Ms. Behr
opined that this is an advantage to the public as they are
provided notice and the ability to comment prior to their rights
being effected. The only exception is the internal management
of a state agency.
MS. BEHR, referring to the flow chart entitled "Steps in the
Regulation Adoption Process," noted that it's presented in the
order in which a state agency should review and consider it.
She further noted that this flow chart is in the Manual of
Legislative Drafting and is on the Department of Law's web site.
Each step in the regulation process has its own description in
the manual. Ms. Behr reminded the committee that the regulation
adoption process is a legislative process. The first step in
the process is planning and decision making. She pointed out
that the state agency can work with the public to develop
regulations through workshops. In fact, the legislature has
authorized negotiated rule making, such that stakeholders can
negotiate regulations. The negotiated rule making has been
successful with the more contentious regulations. As mentioned
earlier, new projects for most state agencies are generated from
statutes, court decisions, or new issues that arise upon the
implementation of existing statutes and regulations. Blocks 2-4
of the regulation adoption process is the point at which the
agency develops the regulations, the additional notice, and
fiscal note. Although an attorney works with the agency, the
bulk of the work at this stage is performed by the state agency.
She noted that assistance of the attorneys at this stage depends
upon access to an attorney or the cost, particularly for the
occupational licensing boards. The occupational licensing
boards want to be sure that every hour an attorney is used is
for developing regulations because it goes into the base fee of
the license. Last year the legislature passed new statute that
has resulted in brief descriptions in the notices of regulations
in order to provide the public with a snapshot of the
regulations. She informed the committee that she provides
training for agencies each year.
1:16:35 PM
MS. BEHR moved on to block 5, which is the publication stage.
At this point, the agency publishes notices in a newspaper of
general circulation and the Alaska online public notice system.
There is also a major mailing list for projects, including
distribution to legislators, the Legislative Affairs Agency, and
the Administrative Regulation Review Committee. She referred to
the aforementioned as the early warning legal review process
during which legislative counsel has the opportunity to advise
legislators what legal issues may be encompassed in the
regulations. The goal of public notice is to encourage public
comment, which is considered during the public comment period as
noted in block 6. Ms. Behr turned to block 7, which deals with
the adoption of regulations. The commissioner has the duty to
seriously consider all the comments, then adopt the regulations,
and inform the public of the adoption. She highlighted that the
legislature has decided that regulations must be adopted in a
publicly noticed public meeting of those who the legislature has
confirmed on the [relevant] board or commission. In block 7
there is often confusion because existing statutes require state
agencies to pay special attention to the cost to private parties
while considering comments. Existing statutes also require that
the Department of Environmental Conservation (DEC) provide
special alternative practical means to accomplish the goal when
developing pollution control standards. She then directed
attention to block 8, which is when the regulations are
submitted to DOL for legal review and approval. Alaska is
fortunate in that DOL reviews regulations for legal sufficiency
prior to them going on the books. This legal review is very
different than the earlier mentioned early warning review by
legislative counsel. The early warning review is performed
during the public comment period when issues can be addressed.
She assured the committee that the memorandums from legislative
counsel are reviewed by DOL during its legal review. During
this step, block 8, the governor's office conducts its review as
well. The legislature included a provision in the
Administrative Procedures Act (APA) that allows the governor to
review certain regulations for faithful execution of the law and
to review for comments from this committee. The governor's
office can delegate the aforementioned to the lieutenant
governor's office. However, the sitting governor has chosen not
to delegate that job and instead the governor's staff is doing
the review. She clarified that this provision for reviewing
regulations applies to non-board regulations because boards meet
infrequently. Moving on to block 9, the agency attorney reviews
the regulations. Upon the [agency attorney] relating to Ms.
Behr that the regulations meet the substantive requirements, she
reviews the regulations to ensure they all look the same and the
language is being used in the same fashion throughout. If a set
of regulations is found not to meet the standards, she discusses
it with the agency attorney and commissioner regarding the need
to fix whatever is necessary prior to becoming a regulation.
The aforementioned, she opined, is a powerful consumer-
protection tool.
1:24:38 PM
MS. BEHR continued with block 11, which is when the lieutenant
governor's office files the approved regulations unless returned
to the state agency by the governor. Regulations typically take
effect 30 days after filing, although they can take longer. The
lieutenant governor's office also is charged with sending the
filed regulations to this committee for its staff to review and
sending them to the publisher to be published in the Alaska
Administrative Code. Under block 12, state agencies have a duty
to notify the public that regulations have been adopted. The
agency posts summaries on the Alaska Online Public Notice
System. She highlighted that constituents can sign-on to the
aforementioned public notice system and get on the mailing list
in order to interface with regard to the regulations. She then
mentioned that the legislature can hold an oversight hearing on
any regulation at any point. Furthermore, every regulation is
subject to review by the court system, which uses independent
judgment on many of the regulations. Ms. Behr pointed out that
there is a petitioning procedure in the APA, which is similar to
the initiative process.
1:27:30 PM
CHAIR REINBOLD related her understanding that between blocks 6
and 7, the state agency can make important changes that have the
force of law without additional public comment. She then
inquired as to whether there is a boundary as to when additional
public [comment/process] should be taken on important changes.
MS. BEHR said that when she teaches this area she encourages
folks to review the public notice in terms of what the public
was informed would occur and whether the public is going to be
surprised. If the public is going to be surprised [by the
actions or regulations], then it should probably go out to
public [comment] again. Most regulations have some deadline,
she noted. Furthermore, the legislature has the ultimate say
over any regulation via legislation. The legislation, that is
statute, always trumps regulations. Moreover, the commissioners
seriously listen at oversight hearings.
1:30:17 PM
CHAIR REINBOLD questioned whether the committee is interested in
having hearings on items such as cost containment of Medicaid
and energy issues. She expressed the goal of making Alaska a
better place to do business, particularly since she recalls
[constituents] saying that the regulations are posing a problem.
Therefore, she expressed interest in holding hearings throughout
the state in order to hear the needs of the state, particularly
where regulations are burdening communities.
1:31:32 PM
SENATOR STEVENS requested further explanation of the petitioning
process.
MS. BEHR reminded the committee that the petition process is in
the APA, and thus includes standards that must be followed.
Petitions are rare, such that she's seen only 10-12 in the over
20 years she been in the position.
1:33:12 PM
TERRI LAUTERBACH, Legislative Counsel, Legal Services,
Legislative Research and Legal Services, Legislative Affairs
Agency, Alaska State Legislature, directed the committee's
attention to her March 14, 2013, memorandum. She said in
general the review process established in AS 24.20.105 was
established in 2004. She highlighted that she doesn't have the
authority to say anything about the policy within a regulation.
However, sometimes there can be a [question of] legislative
intent if the statute isn't clear enough. Ms. Lauterbach
emphasized that when she does issue a memo she is merely saying
there is a possible legal problem per the statute before her and
legal minds can differ. She further emphasized that there has
been good faith efforts by the agencies to consult and discuss
with her any of the issues. As long as the legislature provides
authority to a department to establish certain standards, that's
as far as her review goes. The technical aspect of where the
standard is set is a policy choice. Ms. Lauterbach highlighted
the statistics in the past three biennia during which 200-240
packets of regulations were proposed each two-year period and
they were fairly evenly split between the two years. As
mentioned earlier, there are many factors other than state
legislation that impact regulations. For example, there can be
changes in federal law, program standards, and court decisions.
As the memorandum specifies, only one-fifth or so of proposed
regulations implement new state legislation, which she
attributed to the reason the amount of packets of regulations
are so consistent.
1:38:10 PM
CHAIR REINBOLD inquired as to the process that ensues when a
state agency or private business has a problem with an existing
regulation.
MS. LAUTERBACH reiterated Ms. Behr's earlier testimony regarding
the petition process and the ability to contact a legislator to
request a hearing or the introduction of legislation to change
the regulation.
1:38:56 PM
CHAIR REINBOLD inquired as to with whom Ms. Lauterbach
communicates when she has a question about a regulation and what
actions they take or don't take regarding the communication.
MS. LAUTERBACH clarified that the review process under which she
falls is AS 24.21.105, which only allows her to consult with the
state agencies that are proposing the regulation. The
aforementioned is a confidential process of review that doesn't
involve the public. The candid nature of the email exchange she
has with the agencies depends upon the confidentiality. The
statute would have to be rewritten in order to have any other
input involved. She noted that she does consult attorneys in
LAA, particularly those who drafted the original legislation.
Ms. Lauterbach said she is just advising the legislature.
1:40:42 PM
SENATOR STEVENS inquired as to how the legislative intent
factors into Ms. Lauterbach's regulation review process,
particularly in terms of legislative intent versus statute.
MS. LAUTERBACH answered that it depends upon the type of
legislative intent as sometimes there is a letter of intent from
a committee, an intent section of the legislation, or a letter
of intent from the floor. Those all have different levels of
importance or usefulness. Ms. Lauterbach stated that statute
always takes precedent, no matter the letter of intent.
Therefore, if the statute isn't clear enough, nothing in the
letter of intent will override what's in the statute. A letter
of intent could help if there is vagueness in the statute, but
it won't be determinative, she said.
1:43:06 PM
CHAIR REINBOLD inquired as to how the legislature can improve
the regulatory process and identify issues in the community.
She noted that she has introduced HB 140, which makes changes
such that the agency not only has to [consider] the impacts of
the regulations on the agency as well as other agencies, the
private sector, and municipalities. The desire is for more
transparency and openness in the process. In 2012, Indiana
legislation was passed that substantially rewrote their existing
regulatory cost-benefit analysis law, which is included in the
committee packet along with its fiscal note. She noted that the
highlighted material in Indiana's legislation she considers to
be universal principles of good regulation policy, including an
assessment of the rules effect on Indiana business. Chair
Reinbold highlighted the language in Indiana's legislation that
says, "The OMB shall make the cost benefit analysis and other
related public documents available to interested parties,
regulated persons, and nonprofit corporations whose members may
be affected by the proposed rule at least thirty (30) days
before presenting the cost benefit analysis to the governor and
the administrative rules oversight committee under subsection
(a)." The aforementioned offers the public the opportunity to
read and respond to the cost-benefit analysis. She further
highlighted that Indiana's legislation also required the OMB to
submit a cost-benefit analysis to the governor and the
administrative rules oversight committee not later than six
months after the third anniversary of the rule's effective date,
which she characterized as a look-back provision. Alaska may
want to consider doing the same, she opined. She then
highlighted that it was estimated that Indiana's requirements
could be [covered] with existing [OMB] resources. In
conclusion, Chair Reinbold summarized that the principles of
paying careful attention to the cost to businesses, the cost-
benefit analysis, transparency, and the opportunity to comment
on costs and benefits are areas this committee may want to
consider in Alaska in order to have a more open and transparent
regulation process.
1:46:29 PM
SENATOR GIESSEL inquired as to Ms. Lauterbach's opinion.
MS. LAUTERBACH stated that those principles are a policy call on
which she has no opinion. However, she informed the committee
that the upfront cost-benefit analysis [in Alaska] is supposed
to occur during the public comment period. The look-back
provision, she offered, would be new.
1:47:42 PM
REPRESENTATIVE TARR noted that she has been contacted about
recent regulations with regard to pesticide applications and
eliminating the associated public process prior to pesticide
application on public lands. She related that she has also been
contacted regarding Department of Education and Early
Development regulations related to boarding schools.
1:49:24 PM
CHAIR REINBOLD informed the committee that May 15th is the
deadline for topics for the next meeting. She concluded the
meeting by thanking Ms. Behr and Ms. Lauterbach for their
availability.
1:50:27 PM
ADJOURNMENT
There being no further business before the committee, the
Administrative Regulation Review Committee meeting was adjourned
at 1:50 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 3 21 13 ARRC Documents List.pdf |
JARR 3/21/2013 1:00:00 PM |
|
| 3.21 ARRC Agenda.pdf |
JARR 3/21/2013 1:00:00 PM |
|
| Presentation by Department of Law.pdf |
JARR 3/21/2013 1:00:00 PM |
|
| Presentation by Leg Counsel.pdf |
JARR 3/21/2013 1:00:00 PM |
|
| Leg Counsel Part 2.pdf |
JARR 3/21/2013 1:00:00 PM |
|
| Possible Improvements.INDIANA.pdf |
JARR 3/21/2013 1:00:00 PM |
|
| Indiana SB 311.pdf |
JARR 3/21/2013 1:00:00 PM |
SB 311 |