Legislature(1999 - 2000)
04/21/1999 03:21 PM House L&C
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE LABOR AND COMMERCE STANDING COMMITTEE
April 21, 1999
3:21 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chairman
Representative Jerry Sanders
Representative Lisa Murkowski
Representative John Harris
Representative Tom Brice
Representative Sharon Cissna
MEMBERS ABSENT
Representative Andrew Halcro, Vice Chairman
COMMITTEE CALENDAR
* HOUSE BILL NO. 201
"An Act relating to the computation of overtime; and providing for
an effective date."
- MOVED CSHB 201(L&C) OUT OF COMMITTEE
SENATE BILL NO. 50 am
"An Act relating to certain boiler and pressure vessel inspections
and inspectors; and providing for an effective date."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 201
SHORT TITLE: OVERTIME COMPENSATION COMPUTATION
SPONSOR(S): LABOR & COMMERCE
Jrn-Date Jrn-Page Action
4/15/99 824 (H) READ THE FIRST TIME - REFERRAL(S)
4/15/99 824 (H) L&C, FIN
4/21/99 (H) L&C AT 3:15 PM CAPITOL 17
BILL: SB 50
SHORT TITLE: BOILER AND PRESSURE VESSEL INSPECTIONS
SPONSOR(S): LABOR & COMMERCE BY REQUEST
Jrn-Date Jrn-Page Action
1/28/99 109 (S) READ THE FIRST TIME - REFERRAL(S)
1/28/99 110 (S) L&C
2/18/99 (S) L&C AT 1:30 PM FAHRENKAMP RM 203
2/18/99 (S) MINUTE(L&C)
2/19/99 306 (S) L&C RPT 3DP 1NR
2/19/99 306 (S) DP: MACKIE, HOFFMAN, DONLEY; NR:
2/19/99 306 (S) LEMAN
2/19/99 306 (S) FISCAL NOTE (LABOR)
2/19/99 306 (S) FIN REFERRAL ADDED
3/09/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/09/99 (S) MOVED OUT OF COMMITTEE
3/09/99 (S) MINUTE(FIN)
3/09/99 452 (S) FIN RPT 3DP 5NR
3/09/99 452 (S) DP: TORGERSON, ADAMS, DONLEY;
3/09/99 452 (S) NR: PARNELL, GREEN, PETE KELLY,
3/09/99 452 (S) WILKEN, LEMAN
3/09/99 452 (S) PREVIOUS FN (LABOR)
3/10/99 (S) RLS AT 11:45 AM FAHRENKAMP 203
3/10/99 (S) MINUTE(RLS)
3/11/99 475 (S) RULES TO CALENDAR 3/11/99
3/11/99 476 (S) READ THE SECOND TIME
3/11/99 477 (S) MOTION TO ADVANCE TO 3RD W/DRAWN
3/11/99 477 (S) THIRD READING 3/12 CALENDAR
3/12/99 495 (S) READ THE THIRD TIME SB 50
3/12/99 495 (S) RETURN TO SECOND FOR AM 1 UNAN
3/12/99 495 (S) CONSENT
3/12/99 495 (S) AM NO 1 ADOPTED UNAN CONSENT
3/12/99 495 (S) AUTOMATICALLY IN THIRD READING
3/12/99 496 (S) PASSED Y16 N1 E3
3/12/99 496 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/12/99 497 (S) TRANSMITTED TO (H)
3/15/99 453 (H) READ THE FIRST TIME - REFERRAL(S)
3/15/99 453 (H) L&C, FIN
4/21/99 (H) L&C AT 3:15 PM CAPITOL 17
WITNESS REGISTER
JANET SEITZ, Legislative Assistant
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 24
Juneau, Alaska 99801
Telephone: (907) 465-4968
POSITION STATEMENT: Presented HB 201 as aide to the House Labor
and Commerce Standing Committee.
ED FLANAGAN, Commissioner-designee
Department of Labor
P.O. Box 21149
Juneau, Alaska 99802-1149
Telephone: (907) 465-2700
POSITION STATEMENT: Testified in support of HB 201, indicated the
Version D committee substitute is acceptable to the department and
that the suggested amendment originated with the department.
DON ETHERIDGE
Alaska State District Council of Laborers
710 West Ninth Street
Juneau, Alaska 99801
Telephone: (907) 586-3707
POSITION STATEMENT: Testified in support of HB 201.
THYES SHAUB, Lobbyist
for the National Federation of Independent Business
217 Second Street, Number 206
Juneau, Alaska 99801
Telephone: (907) 463-5118
POSITION STATEMENT: Testified in support of HB 201.
PAM LaBOLLE, President
Alaska State Chamber of Commerce
217 Second Street, Number 201
Juneau, Alaska 99801
Telephone: (907) 586-2323
POSITION STATEMENT: Testified in support of HB 201.
BOB DINDINGER, Vice President
of Government Relations
Alaska Visitors Association
9085 Glacier Highway
Juneau, Alaska 99801
Telephone: (907) 789-0052
POSITION STATEMENT: Testified in support of HB 201.
KIM ROSS, Executive Director
Alaska Air Carriers Association
929 East 81st Street, Suite 108
Anchorage, Alaska 99518
Telephone: (907) 277-0071
POSITION STATEMENT: Testified in support of HB 201.
DWIGHT PERKINS, Deputy Commissioner
Department of Labor
P.O. Box 21149
Juneau, Alaska 99802-1149
Telephone: (907) 465-2700
POSITION STATEMENT: Agreed to request statistical information and
answered questions regarding HB 201; testified in support of SB 50
am.
AL DWYER, Director
Division of Labor Standards and Safety
Department of Labor
P.O. Box 21149
Juneau, Alaska 99802-1149
Telephone: (907) 465-4855
POSITION STATEMENT: Answered questions and accepted chairman's
directive regarding SB 50 am.
ACTION NARRATIVE
TAPE 99-43, SIDE A
Number 0001
CHAIRMAN NORMAN ROKEBERG called the House Labor and Commerce
Standing Committee meeting to order at 3:21 p.m. Members present
at the call to order were Representatives Rokeberg, Sanders, Harris
and Brice. Representatives Cissna and Murkowski arrived at 3:23
p.m. and 3:24 p.m., respectively.
HB 201 - OVERTIME COMPENSATION COMPUTATION
Number 0059
CHAIRMAN ROKEBERG announced the committee's first order of business
is HB 201, "An Act relating to the computation of overtime; and
providing for an effective date."
Number 0075
JANET SEITZ, Legislative Assistant to Representative Norman
Rokeberg, Alaska State Legislature, came forward to present HB 201
as aide to the House Labor and Commerce Standing Committee. House
Bill 201 was generated by a recent court decision regarding
overtime computation [Hallam v. Holland America Line, Inc., d/b/a/
Westours Motor Coaches, Inc.]. The court is approving what is
termed "pyramiding." For lack of a better description, Ms. Seitz
termed it "paying double for overtime." Ms. Seitz indicated that
if a person works 11 hours on Monday and 8 hours each subsequent
weekday including Friday, that person would receive 3 hours of
overtime pay for those 3 overtime hours on Monday and also an
additional 3 hours of overtime pay on Friday for those 3 hours
above 40 hours per week. In effect, the person would receive 6
hours in overtime, as Ms. Seitz understands it. House Bill 201 is
to make it clear that overtime is for 8 hours a day or 40 hours a
week.
CHAIRMAN ROKEBERG noted this has been the interpretation of the
department since statehood, asking if that was correct. He invited
Commissioner-designee Flanagan, Department of Labor, forward.
Number 0159
ED FLANAGAN, Commissioner-designee, Department of Labor, came
forward to testify in support of HB 201. This legislation corrects
an interpretation that goes against the common understanding and
interpretation by labor, management, and the Department of Labor
since, he thinks, Territorial days before 1959. The Department of
Labor strongly supports and will always advocate to retain its
overtime provision requiring the payment of overtime over 8 hours
in a day, but, in the department's opinion, it is ludicrous to
suggest that the employer should not be entitled to receive 40
hours of straight-time [per week]. Under the superior court's
interpretation, an employee working six 10-hour days [in a week]
would be required to be paid for 32 hours straight-time and 28
hours overtime, rather than the current 40 hours straight-time and
20 hours overtime.
COMMISSIONER-DESIGNEE FLANAGAN indicated the additional overtime
required by the court's decision results from including both
overtime and straight-time hours to determine when the weekly
40-hour mark has been reached. Commissioner-designee Flanagan
stated he thinks this is a necessary fix to preserve the state's
8-hour law, and he thinks the court's interpretation creates an
incredible, unjustified and unfair liability for the state's
employers who are paying according to the department's own
instructions and through what has been everyone's understanding for
decades. Commissioner-designee Flanagan commented the department
will support the bill, as currently written, strongly through the
process. He noted the title is rather broad but does not think it
will "invite any mischief" because the agreement is that this needs
to be done quickly and cleanly.
Number 0353
CHAIRMAN ROKEBERG noted there is a proposed committee substitute
(CS) the committee will be adopting and also a proposed amendment
from the department.
COMMISSIONER-DESIGNEE FLANAGAN responded he has reviewed those,
commenting he thinks the committee substitute's Section 2 is more
clear. Regarding the proposed amendment, Commissioner-designee
Flanagan added it was the suggestion of the department's assistant
AG [attorney general] that the legislation's findings section
should probably cite the specific case to eliminate any doubt.
Number 0387
REPRESENTATIVE MURKOWSKI made a motion to adopt Version D as the
proposed CS for HB 201. Version D is labeled 1-LS0872\D, Cramer,
4/15/99. There being no objection, Version D was before the
committee.
Number 0395
REPRESENTATIVE BRICE made a motion to adopt Amendment D.1 offered
by the chairman. Amendment D.1, labeled 1-LS0872\D.1, Cramer,
4/20/99, read:
Page 1, following line 14:
Insert a new paragraph to read:
"(2) the intent of this bill is to override
the superior court's decision in Hallam v. Holland
America Line, Inc., d/b/a/ Westours Motor Coaches,
Inc., 1JU-96-1734 CI, concerning the calculation of
overtime wages; the court in that case
misinterpreted the intent of AS 23.10.060(b);"
Renumber the following paragraphs accordingly.
Page 2, line 6:
Delete "(2)"
Insert "(3)"
CHAIRMAN ROKEBERG questioned if the committee understood the
amendment and if there were any objections. He recognized
Representative Harris regarding clarification.
REPRESENTATIVE HARRIS asked about the second part of the amendment,
page 2, line 6, indicating he thinks it is not correct upon
examining that portion of Version D.
CHAIRMAN ROKEBERG explained the findings become [subsection] (2)
and then it is renumbered according. The chairman commented he had
had the same question earlier. With that point clarified, the
chairman questioned if there were any objections to "Amendment 1"
moved by Representative Brice.
Number 0484
REPRESENTATIVE MURKOWSKI spoke to the amendment, commenting she is
certainly in support. However, she is questioning the last portion
of the amendment which states, "the court in that case
misinterpreted the intent". She wonders if it is necessary to go
so far as to specifically say that.
CHAIRMAN ROKEBERG indicated this was the assistant AG's
recommendation and he is willing to accept it in this instance
where the legislative and executive branches are in agreement, and
this is the interpretation which has been in existence since before
statehood. The chairman noted he appreciated Representative
Murkowski's comment as a member of the legal profession. There
being no further objection, Amendment 1 [Amendment D.1] was
adopted.
Number 0575
REPRESENTATIVE SANDERS asked for confirmation that this would still
mean that if a person works three 10-hour days, the person would
receive 24 regular hours and 6 overtime hours.
COMMISSIONER-DESIGNEE FLANAGAN replied that was correct.
REPRESENTATIVE MURKOWSKI questioned if there would be any negative
effects to taking the retroactivity back to May 4, 1959. She asked
if someone who felt he/she had an erroneously determined wage claim
in the 1970s could use this retroactivity to say the employer owes
that person all these dollars in overtime pay.
COMMISSIONER-DESIGNEE FLANAGAN answered that is exactly what the
retroactivity is attempting to avoid. He noted there is a two-year
statute of limitations for most wage claims. The department's
assistant AG had had a question about the retroactivity upon first
examination of the bill which she checked out with Deborah Behr
[Assistant Attorney General, Legislation and Regulations Section,
Civil Division (Juneau), Department of Law] who saw no problem with
that.
Number 0671
REPRESENTATIVE MURKOWSKI noted, then, it was being taken all the
way back to avoid any opportunity for anyone to bring claim.
COMMISSIONER-DESIGNEE FLANAGAN replied that is his understanding.
He believes the chairman came up with the 1959 date, but the
department does not see any problem with it. Commissioner-designee
Flanagan indicated the department does not interpret this as a
change in the existing wage and hour law; if this legislation is
not passed, the state is changing the rules on the employers in a
very deleterious manner. Commissioner-designee Flanagan thinks
they need to be fully retroactive and the department supports that.
CHAIRMAN ROKEBERG noted the committee had received a letter in
support of the legislation from Lynden Transport [Lynden, Inc.;
April 20, 1999]. The chairman questioned if there were any
witnesses.
Number 0766
DON ETHERIDGE, Alaska State District Council of Laborers, came
forward to testify in support of HB 201. He said
Commissioner-designee Flanagan has convinced them it is a good
idea.
Number 0809
THYES SHAUB, Lobbyist for the National Federation of Independent
Business (NFIB), came forward to testify in support of HB 201. She
indicated they are in full support of the legislation and would be
providing a written statement of support.
CHAIRMAN ROKEBERG asked Ms. Shaub if she had any idea what the
ramifications would be to small businesses around the state.
MS. SHAUB replied this would be a huge impact on small business,
especially for many tourism businesses that have a lot of overtime
hours during the summer.
Number 0858
PAM LaBOLLE, President, Alaska State Chamber of Commerce, came
forward to testify in support of HB 201. She indicated the Alaska
State Chamber of Commerce feels this to be a misinterpretation of
what everyone has understood overtime to be, and it would be a
tremendous impact on business should the court's interpretation be
allowed to stand.
CHAIRMAN ROKEBERG asked if anyone has any idea of what the failure
to pass this legislation would be. He wondered if any attempted
calculations of the impact had been made.
MS. LaBOLLE responded that no one has provided her with any
calculations they might have done.
CHAIRMAN ROKEBERG indicated this would be requested from the
Department of Labor. He asked her if she could narratively
indicate the impacts on business.
MS. LaBOLLE said it essentially has the potential of being twice
the overtime impact that they have had in their business. She
believes businesses make strong efforts to keep overtime costs
down. Ms. LaBolle added, "Considering they're already paying half
again what the regular wage is and then through this it's three
times what the regular wage is." She is sure that would be a very
significant impact.
Number 0944
CHAIRMAN ROKEBERG stated the committee would be asking the
department shortly to do some analysis, but he indicated something
from the Alaska State Chamber of Commerce would be helpful. He
noted, "Even a broad conceptual idea of the impacts on business,
business failures, and the totality on the economy ...."
MS. LaBOLLE responded she could send out a quick call for survey
information regarding the possible impact of this to their
membership.
CHAIRMAN ROKEBERG indicated he would also appreciate the
notification of other chambers of commerce throughout the state so
that they are aware of the situation.
Number 1031
BOB DINDINGER, Vice President of Government Relations, Alaska
Visitors Association (AVA), came forward to testify in support of
HB 201. He is pleased there is this corrective legislation; he
believes it is a misinterpretation or certainly an unanticipated
interpretation of Alaska labor law. Mr. Dindinger noted his
business, Alaska Travel Adventures, has approximately 200 employees
in the summertime. If they are typical of tourism businesses,
labor makes up about of 70 percent of their costs. Their average
employee receives between 15 and 20 percent of his/her hours at
overtime rates. It is pretty typical for his employees to receive
8 to 10 hours of overtime a week. Mr. Dindinger indicated the
short-term punitive effect of this new overtime interpretation
would be borne by the employer because the summer season is so near
and most of the recruitment has already occurred.
MR. DINDINGER believes, however, that over the long term, if he is
paying for hours not worked - which is the net effect of this - his
company will just hire more employees. Ultimately, those college
students and seasonal employees currently collecting those overtime
wages will be replaced with more full-time employees working fewer
hours. He thinks that would be a detrimental effect, and would be
considered a detrimental effect to much of his company's labor
base. Because what they sell in the tourism business is labor,
increasing the labor costs of small businesses by this percentage
over the short-term could lead many small businesses to the brink
of bankruptcy. Mr. Dindinger added that if there were class action
suits going back two years to recover these wages, that would
almost certainly bankrupt many small businesses; he emphasized
having a retroactive effect for the legislation is extremely
important.
Number 1149
REPRESENTATIVE MURKOWSKI observed she thinks Mr. Dindinger is going
into dangerous ground if he suggests possible impact of Judge
Weeks' decision is that Mr. Dindinger might be forced to hire more
full-time employees because they might view this as an opportunity
at the expense of those businesses. She agrees that it would be to
the ultimate detriment of those businesses to do it, but she
doesn't want anyone to get the wrong impression that this might be
a way to employ more Alaskans.
MR. DINDINGER noted the burden of paying those employees would come
from the existing employees. Instead of the existing employees
receiving the overtime rate on a significant portion of their
payroll, they will receive fewer hours to pay the additional
employees. He commented that would be the only way his business
could afford to deal with it over the long term. He added
Representative Murkowski's point is well-taken.
CHAIRMAN ROKEBERG commented he had intended to make the same point.
The chairman is concerned about Mr. Dindinger's statement because
he wondered if it was possible to have straight-time employees
picking up those portions of overtime that Mr. Dindinger's
employees performed. The chairman questioned whether Mr. Dindinger
could manage that that precisely, and if that is entirely
conceivable. Additionally, the chairman questioned if Mr.
Dindinger didn't want to have a certain overtime premium to hire
better quality people. He asked how that works.
Number 1227
MR. DINDINGER answered the more a person can make during the summer
season, the more attractive the job is in total to the person.
However, if the difference is the entire company profit, it is just
not an allowable expense. He noted his company has enough
employees - instead of having five people doing the job and working
six days a week, which is pretty typical in their business - they
would have their employees working five days a week, hiring seven
employees and rotating them through. It certainly might have a
downward effect of the quality of employees the company is able to
attract.
CHAIRMAN ROKEBERG noted on this point the idea of overtime is a
penalty to employers so they don't overwork their employees;
therefore, they need to take due care.
Number 1289
KIM ROSS, Executive Director, Alaska Air Carriers Association
(AACA), came forward to testify in support of HB 201. The
association represents about 180 airlines in Alaska and associated
aviation businesses. She offered AACA's support to HB 201 and
informed the committee this will be an issue addressed by the
association's board at its next meeting. Ms. Ross noted the board
could come up with a resolution if the committee desired.
CHAIRMAN ROKEBERG indicated that would be appreciated. The
chairman invited Mr. Perkins forward.
Number 1336
DWIGHT PERKINS, Deputy Commissioner, Department of Labor, came
forward.
CHAIRMAN ROKEBERG requested Mr. Perkins ask the department's
statisticians to make some very rough estimates of the costs and
ramifications to employment levels and the businesses of the state,
were this case law not to be repealed by this legislation.
MR. PERKINS indicated he will discuss this with the department's
research and analysis section to see what can be quickly provided.
CHAIRMAN ROKEBERG asked if the department has a contingency plan
regarding inquiries made. The chairman questioned if businesses
were going to be "enforced" to calculate [overtime] according to
the court's interpretation until this legislation is passed and
signed by the governor. The chairman asked if any emergency
regulations had been made.
MR. PERKINS answered they have not.
CHAIRMAN ROKEBERG asked if the department was going to check with
the Attorney General.
MR. PERKINS indicated the department would be checking with its
assistant attorney general, but it has not been advised to do so as
of yet. Mr. Perkins commented on part of the urgency expressed by
Commissioner-designee Flanagan about this legislation passing
through.
CHAIRMAN ROKEBERG asked Mr. Perkins to look into that and then
report back. The chairman confirmed there were no further
questions or suggestions for Mr. Perkins. Chairman Rokeberg
confirmed no one else wished to testify on HB 201.
Number 1429
REPRESENTATIVE MURKOWSKI made a motion to move the CS for HB 201
[Version D], as amended, out of committee with individual
recommendations and the attached zero fiscal note. There being no
objection, CSHB 201(L&C) moved out of the House Labor and Commerce
Standing Committee.
Number 1469
CHAIRMAN ROKEBERG called a brief at-ease at 3:44 p.m. The
committee came back to order at 3:45 p.m.
SB 50 am - BOILER AND PRESSURE VESSEL INSPECTIONS
Number 1470
CHAIRMAN ROKEBERG announced the committee's next order of business
is SB 50 am, "An Act relating to certain boiler and pressure vessel
inspections and inspectors; and providing for an effective date."
He invited Mr. Perkins forward.
Number 1490
DWIGHT PERKINS, Deputy Commissioner, Department of Labor, came
forward to testify in support of SB 50 am. The department is
currently severely backlogged with inspections of boilers and
pressure vessels. Mr. Perkins indicated more than half of the
6,000-plus vessels overdue for inspection are of the type that
would be affected by this legislation. SB 50 am would allow the
commissioner of the Department of Labor to identify certain
existing state personnel - plumbing inspectors - and qualify them
to perform these particular inspections with some minimum training.
The newly-trained inspectors would be required to take an
examination and be passed off per the director of the Division of
Labor Standards and Safety's oversight. Mr. Perkins indicated
these personnel would be different from inspectors certified by the
National Board of Boiler and Pressure Vessel Inspectors (NBBI). He
noted the department is trying to reduce its backlog on these
smaller-type boilers that need to be routinely checked. Mr.
Perkins further indicated the legislation would result in
approximately 40,000 new general fund dollars to the state because
the department charges fees for this service, thus the positive
fiscal note. It would also free up the department's NBBI-approved
inspector to perform the inspections needed on the larger-type
boilers and pressure vessels. Mr. Perkins emphasized the
department would be using existing personnel, this would help
reduce the department's backlog and help it service its clients,
and would bring new revenue to the general fund.
Number 1596
REPRESENTATIVE MURKOWSKI asked the difference between an exam
approved by the director [of the Division of Labor Standards and
Safety] for these "lightweight" inspections versus the examination
described in AS 18.60.290.
MR. PERKINS replied the examination the department would be
administering would only be a portion of the national board
examination. Mr. Perkins commented in past the department has sent
boiler inspectors outside the state for training, at a large
expense to the state. However, he indicated the department has not
been able to keep these board-certified individuals once they
return because of the higher pay available in the private sector,
both inside and outside the state. He indicated this legislation
would allow the administering of only a portion of the NBBI test,
scoped to apply to the small pressure vessels. Mr. Perkins noted
the department's existing employees are qualified to look at these
[vessels] and have worked with the tools; they are plumbing
inspectors who have been around for many years and know the
systems. He indicated the inspections they are speaking of would
be, for example, making sure the pressure relief valve - the
low-water cut-off that could send off an alarm or shutdown - is
working properly in a six-plex apartment building. They are not
speaking of the large, industrial-type [vessels].
REPRESENTATIVE MURKOWSKI asked if there would then be an expense to
the department to administer this reduced portion of the exam to
these plumbers.
MR. PERKINS thinks it is a negligible cost; the department does not
see any kind of fiscal impact for that.
Number 1708
CHAIRMAN ROKEBERG questioned why building officials in other
jurisdictions cannot be used for this purpose, if the jurisdictions
already have a building safety official and inspector.
MR. PERKINS indicated he and the chairman have discussed this
subject once previously. Mr. Perkins understands that it has to do
with the population base per the national code. Alaska does not
have the 1 million population base. It is Mr. Perkins'
understanding the state cannot give its jurisdiction out to other
entities - that the state has to oversee this.
CHAIRMAN ROKEBERG asked Mr. Perkins, then, to explain the
legislation currently in the committee, euphemistically known as
"potty parity" [SB 8], which changes the Uniform Plumbing Code
["National Plumbing Code"] to acquire more fixtures, therefore
deviating from the code. The chairman questioned why the
population specifications of the plumbing code could not be changed
to accommodate lower-population jurisdictions.
MR. PERKINS deferred the question to Al Dwyer of Labor Standards
and Safety.
Number 1779
AL DWYER, Director, Division of Labor Standards and Safety,
Department of Labor, came forward. Mr. Dwyer stated the 1 million
population requirement is a national board requirement [National
Board of Boiler and Pressure Vessel Inspectors]. It could be
delegated to any municipality willing to take the responsibility.
The statute would have to be changed. Mr. Dwyer indicated that
presently the state can delegate to NBBI-certified insurance
company personnel, and NBBI-certified personnel employed by
"owner-user companies" like oil companies which can afford to hire
national board-certified people. Mr. Dwyer indicated these
inspections are delegated out but the department retains control.
Copies of the inspection reports, frequency of inspection,
organizational charts, et cetera, are sent to the department so
that the department knows the inspector has authority to enforce
the code [American Society of Mechanical Engineers (ASME) Boiler
and Pressure Vessel Code]. The legislature could add
municipalities to that, but Mr. Dwyer thinks there would have to be
some discussion as to what the department's role would be in that
situation. Mr. Dwyer indicated the department's chief inspector,
a national board-certified individual, would have to have some
control over the activities and scheduling of boilers and pressure
vessels.
CHAIRMAN ROKEBERG questioned why a board-certified local inspector
with the proper credentials couldn't do the inspections on the
residential-type or small commercial boilers.
MR. DWYER confirmed the chairman is referring to someone who has
passed the national board test but who is not working for the
state, an insurance company, or an "owner-user." Mr. Dwyer stated
it would not matter whether the individual is national
board-certified; the national board would not recognize the
inspections done by municipalities unless they had a population
over 1 million. Therefore, it would be a moot question. Mr. Dwyer
indicated the department could probably require the municipalities
to employ a national board-certified inspector if the department
would delegate that out.
Number 1882
CHAIRMAN ROKEBERG asked, "But the national board wouldn't accept
the inspection, ... and it then creates an insurance problem, is
that the issue here or what?"
MR. DWYER answered he thinks it might, but he can't say for sure.
The insurance companies have a vested interest in these boilers and
they generally inspect their own boilers with certified people.
Mr. Dwyer indicated he thinks the problem the state has is making
sure that the inspections are done. He noted they have delegated
out elevator inspections, for instance, to the Municipality of
Anchorage. The municipality has a competent elevator inspector who
reports to the department on a quarterly basis. The department
does not have any control over what this inspector does or how he
does it; the way the delegation is, the department simply receives
a report which notes the inspector has inspected certain elevators.
Mr. Dwyer questioned whether the legislature wished to do this with
boilers.
CHAIRMAN ROKEBERG asked how many of the 6,000 uninspected boilers
are in the Anchorage area.
MR. DWYER replied probably a very small number. Most of
uninspected ones are the ones that are remote. He added, "And that
keeps changing as we do the (indisc.)..."
CHAIRMAN ROKEBERG interjected, "And if we had the Anchorage boilers
inspected by the Anchorage building department, then your state guy
could go out and do the remote ones, or am I wrong?"
MR. DWYER replied the chairman is absolutely correct.
CHAIRMAN ROKEBERG noted he had asked this before, and was under the
impression that it was because the insurance underwriters would not
accept a non-board-certified inspector who wasn't authorized by the
state.
Number 1954
MR. DWYER responded that had been his impression - that the
insurance company would not like this. However, Mr. Dwyer said he
could be incorrect on that.
CHAIRMAN ROKEBERG questioned whether Mr. Dwyer had checked on that,
noting the chairman had inquired about doing that, and that is the
reason the legislation is before the committee. The chairman
commented he will return the legislation to the Senate if
necessary. He noted they are trying to solve the problem here.
One way to do it would be to have board-certified personnel in the
local jurisdictions [perform the inspections], if the provisions
existed in the statute giving them the right to do that under the
department's purview so it is done properly. This would lower the
department's manpower requirement and allow the local governments
to do this work. The chairman indicated the local governments
would presumably be more timely and, therefore, because this is a
safety issue, it would be a safer circumstance. The chairman
questioned if the department did not want to give up any authority,
power, or something, expressing his incomprehension. In response
to Mr. Dwyer's comment as to whether that was a question, the
chairman asked, "Does the department not want to give up any power
or why couldn't we - why can't we (indisc.)..?"
MR. DWYER spoke over, "(Indisc.) that's not an issue with us, Mr.
Chairman. It's up to the legislature to change the statute if they
want to delegate this activity to municipalities." Mr. Dwyer
indicated the department would have to research the impact of that
with the insurance companies. He added that perhaps the
Municipality of Anchorage would not want to accept that liability
- he has not spoken with anyone from the Municipality.
CHAIRMAN ROKEBERG asked, "On that point, are there -- is the
liability created by the inspection and would the building
department have the liability when they inspect it? I think that's
the case, right?"
MR. DWYER answered it is a good question; he thinks it might be the
case.
CHAIRMAN ROKEBERG indicated there is case law showing that building
departments have liability if they fail, or by omission don't
inspect correctly. He asked if that was not correct.
MR. DWYER answered it is his understanding, stating, "If you should
have caught it and didn't (indisc.) liable."
CHAIRMAN ROKEBERG commented there is a lot of case law on that. He
expressed his disappointment, noting he thought that had been
clear, and Mr. Dwyer is answering a little differently than he (the
chairman) had thought. The chairman indicated it has been his
desire to try to farm some of this out to basically increase the
number of inspectors on the job without any fiscal impact. He
noted there are several building departments in the larger
population centers of the state that presumably have people who
would or could become board-certified and who would be able to do
these things.
Number 2060
MR. DWYER commented it is probably not necessary that they be
board-certified if they don't look at "the real serious
high-pressure boilers in large buildings." He indicated
non-board-certified inspectors could inspect the smaller boilers in
six-plexes and things of that sort. Therefore, there are different
levels of delegation that could be considered - there are any
number of ways to approach this.
CHAIRMAN ROKEBERG said, "Well, next time I have questions about
plumbing bills, I'll bring you over here first before we - and put
you on the record before we ask more questions, because that's
fundamentally what I've been seeking from the department is some
answers along those lines. And I got responses in the negative
before, and now I'm getting them more in the positive, so I don't
understand what's going on."
MR. DWYER stated, "I'm sorry for misleading you, Mr. Chairman, but
it was my understanding at that time that the insurance companies
would not favor that, and that there'd be a liability situation.
I've been told that there're other cities in the country where the
state has authority to inspect boilers - that certain cities under
the population of 1 million are inspecting them. And it's just
that they're not national board-certified; they're not recognized
by the national board."
CHAIRMAN ROKEBERG noted, "(Indisc.) type inspectors in Section -
the first section (indisc.). I mean, wouldn't that be a feasible
method if we would grant that authority to the -- (indisc.) it
looks like the title is loose enough."
MR. DWYER agreed; he thinks that would be a way to do it.
CHAIRMAN ROKEBERG asked if Mr. Dwyer had made inquiries of any of
the building departments around the state, if they would be
interested.
MR. DWYER replied his last instructions were to provide a list of
all the building officials to the deputy commissioner, which he
did, and Mr. Dwyer thought that list would be provided to the
chairman.
CHAIRMAN ROKEBERG indicated that was regarding SB 8. The chairman
noted the existence of plenty of code problems this year. He
informed the committee it has been the legislature's goal, by
statute, to remove all building code statutory reauthorizations and
grant them to the department. This allows the department to handle
the adoption of the periodic changes in the building codes by
regulation, so the politics can be removed. However, the chairman
noted that apparently the Senate has not received the word on that
yet.
Number 2173
MR. PERKINS commented that, to the chairman's credit, he is
absolutely correct and the department has appreciated this in the
last few years. It has certainly made everyone's job and life a
little bit easier when it has been time to renew codes.
CHAIRMAN ROKEBERG questioned, "Wouldn't (indisc.) this make it
easier? I mean, I've been talking to the department for several
months about this bill and asked it if you could add a provision
that would allow local inspection. Wouldn't that save you money
and save the state money and increase public safety, if it was
administered correctly? ... If the program was designed right? I
mean, is that possible or am I off-base here?"
MR. DWYER responded he would have to research that. He noted it
sounds like a very possible thing to do. He noted, "It would be a
question of delegating that to the municipalities..."
Number 2213
CHAIRMAN ROKEBERG interjected a course of action. He noted the
legislation would be held over and suggested that Mr. Dwyer call
the chief building officials in Anchorage, Juneau and Fairbanks to
find out if they have any qualified people and if they're
interested in taking this on. The chairman noted the committee
would then take the legislation up again and Mr. Dwyer could answer
that in front of the committee.
MR. DWYER indicated his agreement with the idea and directive.
CHAIRMAN ROKEBERG questioned whether anyone else wished to testify
on SB 50 am. There being no one, SB 50 am was held over.
ADJOURNMENT
Number 2241
CHAIRMAN ROKEBERG adjourned the House Labor and Commerce Standing
Committee meeting at 4:05 p.m.
| Document Name | Date/Time | Subjects |
|---|