03/19/2003 01:04 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 19, 2003
1:04 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 114
"An Act relating to the issuance of a search warrant."
- MOVED CSHB 114(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 34
"An Act relating to negotiated regulation making; and providing
for an effective date."
- MOVED HB 34 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 114
SHORT TITLE:ISSUANCE OF SEARCH WARRANTS
SPONSOR(S): RLS BY REQUEST
Jrn-Date Jrn-Page Action
02/19/03 0253 (H) READ THE FIRST TIME -
REFERRALS
02/19/03 0253 (H) JUD
03/07/03 (H) JUD AT 1:00 PM CAPITOL 120
03/07/03 (H) Meeting Postponed to 03/10/03
03/10/03 (H) JUD AT 1:00 PM CAPITOL 120
03/10/03 (H) <Bill Hearing Postponed to
3/12>
03/12/03 (H) JUD AT 1:00 PM CAPITOL 120
03/12/03 (H) Heard & Held <subcommittee
assigned>
MINUTE(JUD)
03/19/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 34
SHORT TITLE:REPEAL SUNSET OF NEGOTIATED REG.MAKING
SPONSOR(S): REPRESENTATIVE(S)HOLM
Jrn-Date Jrn-Page Action
01/21/03 0040 (H) PREFILE RELEASED (1/10/03)
01/21/03 0040 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0040 (H) JUD
03/19/03 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Explained Version H of HB 114 on behalf of
the administration, and responded to questions.
BARBARA COTTING, Staff
to Representative Jim Holm
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 34 on behalf of the sponsor,
Representative Holm.
CRAIG TILLERY, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
34 and responded to questions.
JEANNETTE JAMES, Former Representative
Alaska State Legislature
North Pole, Alaska
POSITION STATEMENT: During discussion of HB 34, spoke as the
sponsor of HB 264, which passed in 1998.
MARGARET KING, Program Manager
Resource Solutions
University of Alaska
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
34.
ACTION NARRATIVE
TAPE 03-23, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:04 p.m. Representatives
McGuire, Holm, Ogg, Samuels, Gara, and Gruenberg were present at
the call to order. Representative Anderson arrived as the
meeting was in progress.
HB 114 - ISSUANCE OF SEARCH WARRANTS
Number 0037
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 114, "An Act relating to the issuance of a
search warrant." She indicated that the subcommittee assigned
to work on HB 114 has returned with a proposed committee
substitute (CS).
Number 0079
REPRESENTATIVE HOLM moved to adopt the proposed committee
substitute (CS) for HB 114, Version 23-LS0564\H, Luckhaupt,
3/19/03, as the work draft. There being no objection, Version H
was before the committee.
Number 0121
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said that Version H addresses concerns raised by the
committee and the Public Defender Agency (PDA) at the bill's
last hearing. Version H now requires that in order for a police
officer to fax in an application for a search warrant, it would
be subject to the same criteria as telephonic testimony in
support of a search warrant. This criteria has been expanded to
include anytime there is a delay that would otherwise ensue in
the issuance of the search warrant, and that delay would
interfere with an ongoing investigation. He remarked that
members of the subcommittee and representatives from the
Department of Public Safety (DPS), PDA, and the ACS worked
together to develop Version H, and that all parties are
satisfied with the result.
Number 0192
REPRESENTATIVE SAMUELS moved to report [the proposed (CS) for HB
114, Version 23-LS0564\H, Luckhaupt, 3/19/03] out of committee
with individual recommendations [and the accompanying zero
fiscal notes].
Number 0203
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
REPRESENTATIVE GARA asked Mr. Wooliver to explain in detail the
differences between Version H and the original bill.
MR. WOOLIVER responded:
The initial bill as introduced would have allowed
faxed applications in support of search warrants,
unconditionally. This bill [Version H] restricts
faxed application in support of search warrants to
those circumstances where not being allowed to fax
would result in a delay in the issuance of the search
warrant and that delay would either result in the loss
or destruction of evidence, which was the original
standard, or - the new language - would interfere with
an ongoing investigation.
REPRESENTATIVE GARA asked whether, from a law enforcement
perspective, Version H satisfies the problem experienced by out-
of-town law enforcement officials in obtaining search warrants
under existing law.
MR. WOOLIVER said it does.
REPRESENTATIVE GRUENBERG asked whether the ACS's fiscal note
remains the same.
MR. WOOLIVER said it does.
REPRESENTATIVE GRUENBERG removed his objection.
REPRESENTATIVE SAMUELS again moved to report the proposed (CS)
for HB 114, Version 23-LS0564\H, Luckhaupt, 3/19/03, out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, CSHB 114(JUD) was
reported from the House Judiciary Standing Committee.
HB 34 - REPEAL SUNSET OF NEGOTIATED REG.MAKING
Number 0369
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 34, "An Act relating to negotiated regulation
making; and providing for an effective date."
Number 0420
BARBARA COTTING, Staff to Representative Jim Holm, Alaska State
Legislature, on behalf of Representative Holm, sponsor,
mentioned that there are two fiscal notes for HB 34, and drew
attention to the analysis provided on the Department of
Revenue's fiscal note. This analysis in part says, "The Tax
Division of the Department of Revenue last year used the
negotiated regulation making process to draft and adopt new
regulations for charitable gaming, and found the process useful
and effective." She went on to explain that the original
legislation [SCS CSHB 264(STA)] that created the process of
negotiated regulation making - referred to as "Neg-Reg" - was
passed in 1998, and that it had a sunset date of July 1, 2003,
for the purpose of reviewing whether the process works.
MS. COTTING remarked that since the process has proven to be
very successful, HB 34 was introduced for the purpose of
repealing the sunset provisions of the original legislation.
She posited that the Neg-Reg process makes regulation writing
more applicable to reality because it allows any interested
parties that would be affected by forthcoming regulations to
work together as a team and submit recommendations before the
regulations are published for public review. She said that this
Neg-Reg process has been used with tremendous success over the
last few years since the bill was passed, most notably in
writing "cruise ship" regulations. She offered that the Neg-Reg
process eliminates lawsuits and lengthy public appeals because
everything has been ironed out ahead of time; the resulting
regulations are much more practical and enforceable than if all
the parties had not been involved from the beginning.
MS. COTTING opined that it is very important to keep this
process in statute as a guideline. Apparently, she remarked,
the process could be used informally, but if it is actually in
statute, people who aren't familiar with it can go to a section
of statute for guidance. After reiterating that the sunset
provisions of the original legislation take effect this upcoming
July 1, she urged the committee to pass HB 34 as soon as
possible to avoid the statutory Neg-Reg process from sunsetting.
Number 0623
CRAIG TILLERY, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law (DOL),
said that the administration has not taken a position on HB 34,
that a review of the legislation has not revealed any legal
problems with it, and that the DOL believes it accomplishes what
the sponsor intends. He relayed his experience involving the
"cruise ship negotiated rule making":
That negotiated rule making was entered into at the
direction of the legislature, which provided the
statute that we should do regulations and, if
appropriate, that we should do them through the
negotiated rule-making process. That law became
effective in July of 2001, and within about four or
five months our RFP [request for proposals] was sent
out for a facilitator through the negotiated rule
making and the commissioner-appointed members. It's
fairly instructive to look [at] who was appointed. It
was representatives of cruise lines, both large and
small cruise ships; there were environmental groups;
the United States Coast Guard participated; the Alaska
Marine Highway System participated; Native leaders;
engineering experts; local governmental officials; and
the Department of Environmental Conservation.
When you do this kind of process, what we did was to
identify the particular issues that we felt were
appropriate for the process. It required basically
three meetings in person by the negotiated rule-making
group, and then a final teleconference. All of these
sessions are open to the public, who are welcome to
come. There weren't a lot of public members there, I
think primarily because the representatives were
chosen fairly well. The stated goal of negotiated
rule making is to achieve consensus or to identify, if
that's impossible, those areas where consensus cannot
be achieved. In our situation, the meetings went
fairly well.
There was some debate; there was little acrimony,
although the subject had been acrimonious in the past.
There was a lot of understanding that was gained
between the different parties, and a lot of problems
were solved. And where, in the regular rule-making
process, you might propose regulations, then you'll
get comments back from both sides, sometimes you end
up with ships passing in the night. And, in this
case, our ships collided head on and were able to
resolve things during the meeting, pretty much to
everyone's satisfaction. Consensus was achieved on
virtually all important areas; there are about three
secondary issues that were not resolved that came back
to the commissioner for a final decision. The
regulations were proposed by the department and became
final in November of 2002, so the entire process took
about a year to finish.
Number 0802
MR. TILLERY continued:
My impressions of what we did was that it was a very
effective process. It allowed for the exchange of
information that made for a better set of regulations.
What we don't know, what I suspect was accomplished
but is very hard to measure, is sort of the lack of
lawsuits being filed; we have not had anyone challenge
them to date. And it's also impossible to measure the
lack of violations that might occur because of better
clarity, because the regulations were drafted in a way
that was clear to all parties and that worked for all
parties. But I think that all of those are components
of this being [an] effective process.
I would also note that it is a somewhat costly
process. For the state, my experience has indicated
it's critical to have a facilitator, and that is an
expensive proposition. For the parties, several of
the parties have noted that it was pretty expensive
for them to attend; [for] some of the groups, people
were attending without compensation, so that's time
out of their day. There's travel involved because
these meetings do generally have to be face to face.
I'd also note that negotiated rule making is not good
in all situations; in fact, it's not good in most
situations. It does require some specific
circumstances. It requires identifiable interest
groups, on all sides of an issue; it requires a
manageable number of different interests; it requires
issues that are amenable to consensus; and it requires
parties that will agree to not revisit decisions that
have already been made by the legislature - this is
not a time to re-fight the cruise-ship legislation
battle. And, again, in this case we were able to do
that and work pretty well.
Number 0897
MR. TILLERY concluded:
In summary, I believe that this is a tool that needs
to be in the toolbox; it will have limited
application, but where it has application it can be a
very important method of moving forward. And one more
thing I would point out is that we had another
instance with nontank vessel legislation, or
regulations, where negotiated rule making was not used
formally. That is, we didn't specifically follow
those rules. Nevertheless, the outline in the statute
was followed, and that also was quite a successful
process. So there certainly is importance to having
the framework in the statutes even if it's not
formally used.
REPRESENTATIVE GARA asked who pays for the facilitators.
MR. TILLERY indicated that facilitators are paid for by the
state, adding that this worked well in the cruise ship context
because the fee that the cruise ships were paying paid for the
facilitator. He acknowledged that in other situations, there
might not necessarily be such a straightforward source of
revenue. And although a facilitator was not used for the
charitable gaming regulations, he remarked that for both the
cruise ship regulations and the nontank vessel regulations, it
was very important to have a facilitator because those
discussions involved very contentious issues and the facilitator
kept people on track.
MR. TILLERY, in response to questions, said that the fee he
referred to earlier was the "per passenger berth fee" that was
part of the cruise ship legislation. This fee, although
technically general fund (GF) revenue, goes into a special
account that the legislature has indicated should be
appropriated for specific purposes, and he likened the manner in
which this fee is dealt with as similar to "the response fund."
He also mentioned that the facilitator used in the Neg-Reg
process for both the cruise ship regulations and the nontank
vessel regulations was Brian Rogers.
REPRESENTATIVE GARA asked Mr. Tillery if he could provide an
estimate of the facilitator's cost.
Number 1141
MR. TILLERY asked Representative Gara to refer that question to
the Department of Environmental Conservation (DEC) -
specifically Gretchen Keiser [Program Manager, Water Discharge
Permits & Certification Plan]. In response to further questions
regarding having a facilitator during a Neg-Reg process, he
said:
I believe that in our situation with the [cruise ship
regulations] it was very important. The legislation
came out, it was very contentious, and there is always
a chance in that situation that you will not be able
to achieve consensus because of old animosities or
because people get off subject. What a trained
facilitator can do is to bring everybody -- in
addition to handling a lot of the sort of chores,
which is keeping transcripts of the meetings and in
keeping updated versions of where the regulations are,
but what they can do is keep everybody on track, and
they can talk to people who might have differing
points of view and bring things together. ... I
understand that [in] the view of the people involved
in the nontank vessel activities, that that was
important. But, again, ... it wasn't used for the
charitable gaming [regulations], which also was
somewhat contentious but was a slightly smaller
problem, and my understanding is that they were
successful in that, though I was not directly
involved.
REPRESENTATIVE GARA asked Mr. Tillery if, in his experience,
there is any danger that negotiated rule making ends up making
regulations weaker, in any sense.
MR. TILLERY opined that there is not a significant danger of
that; it doesn't make them weaker and it doesn't make them
stronger, he added, it makes them better. He reiterated that
one of the problems with the regular rule-making process is that
"you may have ships passing in the night"; there may be a
concern raised by one group that is not addressed by another,
and this can lead to a second round of the public notice
process, and can lead to the commissioner making decisions
without first hearing all the parties address all the issues
directly and head-on. He reiterated that all meetings in the
Neg-Reg process are public meetings, and opined that the Neg-Reg
process tends to make for a better process. He pointed out that
the Neg-Reg process occurs in addition to and before the regular
Administrative Procedure Act (APA) process. Hence the APA
process is much shorter and [more productive] because most of
the concerns have already been worked out.
REPRESENTATIVE GARA asked whether parties who participate in the
Neg-Reg process are prevented from challenging the resulting
regulations.
MR. TILLERY said that legally, parties are not prevented from
challenging the resulting regulations even if they initially
agreed to them.
Number 1387
CHAIR McGUIRE recalled that the Neg-Reg process proved quite
helpful with the mariculture regulations, which was a very
contentious issue. At the end of the Neg-Reg process, she
remarked, parties came out with a better understanding of each
other's positions, which was important for the [end result].
REPRESENTATIVE GRUENBERG turned to AS 44.62.720(a), which
contains the phrase, "In making that determination, the agency
head is advised to"; he remarked that this is an unusual
statutory phrase. He also noted that according to AS 44.62.780,
actions taken under AS 44.62.720(a) are not subject to judicial
review. He asked Mr. Tillery if the term, "is advised to"
carries any more weight with administrative agencies than the
term, "may".
MR. TILLERY said that to him, the two terms are pretty similar
in that they are discretionary rather than mandatory. He
relayed that in the cruise ship Neg-Reg process, the
commissioner did consider all the items listed in AS
44.62.720(a).
REPRESENTATIVE GRUENBERG turned attention to AS 44.62.720(a)(7),
which read, "the agency head, to the maximum extent possible
consistent with the legal or other obligations of the agency,
will use the consensus of the committee as the basis for the
regulation proposed by the agency under AS 44.62.010 -
44.62.320." He asked whether the term "will use" is synonymous
with "must" or is merely an aspiration.
CHAIR McGUIRE surmised that in that paragraph, the phrase, "to
the maximum extent possible consistent with the legal or other
obligations of the agency" acts as a qualifier.
REPRESENTATIVE GRUENBERG turned to language in statute that
pertains to the negotiated regulation making committee assisting
the agency head in making decisions. He asked how much the
agency head must follow what that committee says.
MR. TILLERY said that although the agency head is not bound to
follow the recommendations of the committee, as a practical
matter it would be very unusual if those recommendations were
not followed as much as possible. He recalled that during the
cruise ship Neg-Reg process, there was only one instance in
which the commissioner did not follow the committee's
recommendations. In that instance, it was anticipated that
after the Neg-Reg process, certain regulations were going to be
approved via a different [ongoing] process, and so the committee
was warned that those forthcoming regulations would substitute
the committee's recommendations for that particular issue.
Number 1686
REPRESENTATIVE GRUENBERG turned to AS 44.62.780, which in part
reads:
An agency action relating to establishing, assisting,
or terminating a negotiated regulation making
committee under AS 44.62.710 - 44.62.800 is not
subject to judicial review. Nothing in this section
bars judicial review if the judicial review is
otherwise provided [for] by law.
REPRESENTATIVE GRUENBERG asked whether an agency head's decision
to disregard the committee's report is judicially reviewable.
MR. TILLERY said that as far as that particular action is
concerned, there is nothing to review. All that can be reviewed
judicially are the regulations themselves, and those would be
reviewed under the APA.
REPRESENTATIVE GRUENBERG surmised, then, that the process of
disregarding or adopting is in itself not judicially reviewable;
rather, only the content of the regulation [is judicially
reviewable].
MR. TILLERY said that is correct, and explained that as a
practical matter, the agency has the discretion to disregard
even a consensus recommendation if necessary. He reminded
members that when these regulations come out of the committee,
they go before the public again and there can be changes made
during that APA process.
CHAIR McGUIRE pointed out that if the regulations are under
review, a provision of law specifies that greater deference
can't be given by the court.
REPRESENTATIVE GRUENBERG turned to AS 44.62.730 and 44.62.760,
which refer to a convener and a facilitator respectively. He
relayed his understanding that a convener is one who establishes
a committee, while a facilitator is more like a moderator or
mediator. He asked whether his understanding is correct.
MR. TILLERY agreed and pointed out that the convener isn't
particularly necessary, although the facilitator is the key
individual. He relayed that in the cruise ship Neg-Reg process,
the commissioner acted as the convener.
Number 1830
REPRESENTATIVE GRUENBERG directed attention to AS 44.62.750(c)
and surmised that the adoption of the procedures don't have to
be by regulation and isn't judicially reviewable. He further
surmised that the negotiated rule-making committee may use
informal procedures for the method of adopting the procedures of
the committee.
MR. TILLERY confirmed those points.
REPRESENTATIVE GRUENBERG returned to AS 44.62.780, which
contains the following sentence: "Nothing in this section bars
judicial review if the judicial review is otherwise provided by
law". He inquired as to the meaning of "otherwise provided by
law".
MR. TILLERY explained that if there is another provision in
statute that allows judicial review of regulations, it may be
done. In this case, [the language] is directly aimed at the
judicial review provisions for the adoption of regulations under
the APA. In response to further questions, he said that the
judicial review procedures of the APA apply to regulations
coming out of the APA, and the procedure [proposed in HB 34]
leads into the APA. Thus the regulations developed under the
Neg-Reg process ultimately go through the APA under which the
judicial review procedures fall.
REPRESENTATIVE GRUENBERG directed attention to AS 44.62.795
which specifies that records containing proprietary information
can be kept confidential. He asked whether the decision to
maintain confidentiality on a proprietary basis is judicially
reviewable.
MR. TILLERY opined that it would be, and noted that this issue
has come up many times with regard to public record requests.
He noted that this is a well-recognized exception. Mr. Tillery
specified that he believes that it would be judicially
reviewable, however he is unsure as to whether the department
would've received the records under promise of confidentiality.
He elaborated, "Typically we would say, 'We believe they're
confidential, we will take a position that they're confidential,
but a court may rule otherwise.'"
REPRESENTATIVE GRUENBERG clarified that he was simply interested
in whether the court had jurisdiction to consider the issue.
MR. TILLERY said that it would under the Public Records Act.
Number 1982
JEANNETTE JAMES, Former Representative, Alaska State
Legislature, speaking as the sponsor of SCS CSHB 264(STA), which
passed in 1998, said that it is important to extend the original
legislation into the future [via HB 34]. She said that she has
found that specific regulations targeting a select group or
objective can be troublesome because often those writing the
regulations aren't familiar with how the regulations will
actually impact people. Therefore, she opined, it's important
and appropriate to have [the Neg-Reg process] available and
outlined in statute. She informed the committee that she
obtained the idea from the federal government and some other
states that were doing this. And although the Neg-Reg process
requires a bit more work upfront, she predicted that the savings
would roll forward because of the lack of lawsuits and other
things that usually ensue because of regulations. [The Neg-Reg
process] is cheaper in the long run and it's more compatible
with both the government and the public, she concluded.
CHAIR McGUIRE thanked Ms. James for her hard work on this issue.
She opined that the idea behind the Neg-Reg process is to bring
the public, the very people impacted by regulations, to the
process.
REPRESENTATIVE HOLM commented that the Neg-Reg process is just
another tool that allows the state to negotiate in the best
interest of the state.
Number 2116
MARGARET KING, Program Manager, Resource Solutions, University
of Alaska, explained that the Resource Solutions program focuses
on training, research, and community services advancing
collaborative approaches to public decision-making. She agreed
that [the Neg-Reg process] is another tool. Ms. King turned to
the earlier conversation with regard to facilitators. She
relayed that she has found facilitators to be effective, whether
they are contracted by an agency or are already public employees
with facilitating skills.
Number 2173
CHAIR McGUIRE closed public testimony.
REPRESENTATIVE GRUENBERG noted that there were other things
included in the [original] legislation that were merely
conforming. For example, Section 3 added another paragraph -
(38) - to AS 36.30.850(b); this paragraph would exempt from the
State Procurement Code contracts for a convener or a facilitator
related to the Neg-Reg process. He asked whether there are any
other paid employees or contractors who should be considered
exempt from the procurement code.
MR. TILLERY, drawing on his experience, relayed that the
facilitator and the facilitator's staff were the only people
used. He mentioned that at some point, "an expert" might be
called upon to assist, but that expert would typically be
someone already on the committee. Mr. Tillery said he didn't
believe it would be much of an issue as long as the committee
was well chosen.
REPRESENTATIVE GRUENBERG pointed out that there was a similar
conforming amendment to the State Personnel Act. He asked
whether the exemption from the State Personnel Act would need to
extend to anyone other than conveners or facilitators.
MR. TILLERY said that based on his experience, he couldn't think
of anyone else.
REPRESENTATIVE GRUENBERG noted that Section 1 of HB 34 contains
legislative intent language. He noted that normally he isn't a
fan of legislative intent language and that, furthermore, simply
repealing a sunset clause, as HB 34 does, is obvious and
wouldn't require that language. He asked if there is a legal
reason why Section 1 is necessary.
MR. TILLERY said he wasn't sure why the legislative intent
language was included. He remarked that normally, it is not
necessary, and agreed with Representative Gruenberg that the
intent of HB 34 is fairly clear. However, he said he recalled
case law supporting the need to be specific when repealing
sunsets, and offered to get back to the committee on that issue.
Mr. Tillery said he saw no harm in leaving the intent language
in HB 34.
MS. COTTING recalled that in her conversation with the bill's
drafter, she'd requested that the repeal of Sections 6, 7, and 9
of [SCS CSHB 264(STA)] be made very clear.
REPRESENTATIVE GRUENBERG opined that the intent of HB 34 is
crystal clear, [especially] given the legislative history.
Therefore, he said he didn't see the need for the intent
language.
TAPE 03-23, SIDE B
Number 2382
REPRESENTATIVE HOLM expressed a preference for leaving the
intent language in.
REPRESENTATIVE GARA said that the policy behind the legislation
seems fine. However, he said he has concern with forwarding
legislation for which there hasn't been much discussion of its
real world application, adding that it seems that [the Neg-Reg
process] is used frequently by the resource agencies.
Therefore, he expressed the desire to hear more testimony with
regard to how the [original] legislation has worked over the
last four years. He noted that his discomfort is further
compounded because this is the only committee of referral for HB
34.
REPRESENTATIVE GARA also remarked that the fiscal notes don't
appear to be accurate because it seems that HB 34 will cost a
certain amount of money. The legislation provides that a
facilitator may be used and, in fact, facilitators are used.
The one facilitator about which the committee heard is a private
facilitator whose services cost money. Representative Gara said
he would prefer to see an accurate fiscal note before reporting
HB 34 from committee.
REPRESENTATIVE SAMUELS relayed that he was comfortable with [HB
34]. With regard to the fiscal notes, he surmised that if funds
for facilitators are already incorporated into the budget, the
zero fiscal note is correct because [the Neg-Reg process] is
already being done now; thus, there would be no additional costs
for continuing to do it, but there would be positive revenue if
it was discontinued. Representative Samuels said that if
everyone is at the [negotiating] table [at the beginning], it
would save money in lawsuits. He concluded by saying, "I'm all
for it."
REPRESENTATIVE ANDERSON echoed Representative Samuels's
comments. He remarked that [the original legislation]
experienced bipartisan support. With regard to Representative
Gara's questions, Representative Anderson asked why
Representative Gara didn't contact those agencies involved.
Representative Anderson pondered how many meetings
Representative Gara would want to have to get his questions
answered.
Number 2207
REPRESENTATIVE GARA pointed out that legislation is supposed to
receive public hearings, not hearings behind closed doors. The
public is supposed to understand and hear the merits and
demerits of legislation. Therefore, he said he would rather
have a public hearing versus a private hearing because that is
part of the public process. Representative Gara remarked that
when a representative receives legislation, it is fair for that
representative to assume that there will be adequate public
comment. Representative Gara said that he didn't feel that
there was adequate public comment [for HB 34]. He said that he
would be more comfortable if HB 34 had another committee of
referral. He noted that it's unique for legislation to receive
only one committee of referral. He indicated that he is willing
to ask for additional public testimony whenever he believes it's
necessary.
CHAIR McGUIRE noted that she does her best to ensure that this
committee has full and adequate public hearings on all
legislation. She said that she could line up folks from various
groups that have benefited from [the Neg-Reg process]. She
highlighted that the most important thing about HB 34 is that
it's optional. Furthermore, nothing in HB 34 negates an
agency's responsibility in terms of oversight. An agency can
decide to use or not use this process and if it is used, the
agency can disregard a recommendation that the agency deems to
be poor or improper. Therefore, she said she believes checks
and balances are in place. She said she disagrees with the
notion that there hasn't been an adequate public process.
REPRESENTATIVE SAMUELS opined that the [the Neg-Reg process]
enhances the public process.
REPRESENTATIVE HOLM pointed out that the APA retains its
oversight, and noted that HB 34 merely addresses the sunset
provisions, not the merits, of the [original legislation], which
received a full public hearing at the time of its passage.
REPRESENTATIVE GARA said that the public process in this
committee was fine. He clarified that he wanted to know more
about how HB 34 has worked in practice, because the decision
today is whether to reauthorize legislation that has been used
in the past. Therefore, people will infer from the committee's
actions [in passage of HB 34] that this reauthorization occurred
due to the [committee's] belief that the original legislation
worked well. Hearing one example of how [the Neg-Reg process]
worked doesn't provide the committee an adequate basis to
determine how well the process has worked over the past four
years, he remarked. Therefore, if, as a legislator, he is being
asked to forward legislation on the supposition that it has
worked well in the past, he expressed the need to know that such
is true.
Number 2157
REPRESENTATIVE GARA said he didn't believe he has heard enough
information to know that and, furthermore, the next stop for
this legislation is the House floor. He noted that he would be
more comfortable if HB 34 were to have a referral to the House
Resources Standing Committee. He also recalled instances on the
House floor of the question being asked regarding how well
certain legislation works; the response has been that that work,
gathering that information, should've been done in the committee
to which the legislation was referred.
CHAIR McGUIRE posited that the sponsor of HB 34 will be able to
provide another practical life example [of how the Neg-Reg
process] worked. With regard to Representative Gara's desire
for there to be a House Resources Standing Committee referral,
she said she presumed that this is connected to the cruise ship
example. However, she highlighted the fact that [the Neg-Reg
process] can be used as an option for any regulations involving
any area of law. Therefore, she said that it makes no sense to
her why a referral to the House Resources Standing Committee
would be the preference over [any other committee].
REPRESENTATIVE ANDERSON said that he had misunderstood
Representative Gara to be questioning the public process.
Representative Anderson said that he didn't want legislation to
pass from committee when [a member] doesn't feel the legislation
has received due public process.
REPRESENTATIVE GARA, in response to the comments by Chair
McGuire, explained that he'd mentioned the need for the House
Resources Standing Committee referral because of his knowledge
that the Department of Natural Resources (DNR), the Alaska
Department of Fish & Game (ADF&G), and the DEC issue regulations
that might use the law which HB 34 pertains to. With regard to
the chair's comment that perhaps HB 34 should have referrals to
other committees, he said that maybe it should and that that
wouldn't be a reason not to send it to the House Resources
Standing Committee. He clarified that his desire is to have HB
34 receive a referral to a committee that has jurisdiction over
agencies that use the legislation.
CHAIR McGUIRE said she believes HB 34 should have come to the
House Judiciary Standing Committee. She announced that [HB 34]
would pass out of committee.
REPRESENTATIVE GRUENBERG remarked that since HB 34 isn't going
to another committee he wanted to return to his earlier issue
with the intent language. Noting that he doesn't have a problem
with this particular intent language, he said he is concerned
about including intent language when the legislation merely
repeals a sunset clause. Representative Gruenberg stressed that
as a policy matter, he didn't want to see a lot of intent
language clutter up the statutes. Representative Gruenberg said
that he wouldn't offer an amendment in committee if
Representative Holm and Ms. Cotting would work with him
informally and discuss this with the drafter. If it appears
that the intent legislation isn't necessary, he desired
Representative Holm's commitment to work with him on a floor
amendment to delete it.
REPRESENTATIVE HOLM said that would be fine. He reiterated that
HB 34 merely addresses sunset provisions.
Number 1742
REPRESENTATIVE SAMUELS moved to report HB 34 out of committee
with individual recommendations and the accompanying zero fiscal
notes.
REPRESENTATIVE GARA objected.
Number 1731
A roll call vote was taken. Representatives Gruenberg,
Anderson, Ogg, Holm, Samuels, and McGuire voted in favor of
reporting HB 34 from committee. Representative Gara voted
against it. Therefore, HB 34 was reported from the House
Judiciary Standing Committee by a vote of 6-1.
ADJOURNMENT
Number 1717
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:10 p.m.
| Document Name | Date/Time | Subjects |
|---|