03/18/2008 02:40 PM House TRA
| Audio | Topic |
|---|---|
| Start | |
| HB415 | |
| HB294 | |
| HB372 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
March 18, 2008
2:40 p.m.
MEMBERS PRESENT
Representative Kyle Johansen, Chair
Representative Anna Fairclough
Representative Wes Keller
Representative Mike Doogan
Representative Woodie Salmon
MEMBERS ABSENT
Representative Mark Neuman, Vice Chair
Representative Craig Johnson
OTHER LEGISLATORS PRESENT
Representative Andrea Doll
COMMITTEE CALENDAR
HOUSE BILL NO. 415
"An Act relating to disclosures required for the sale of a used
motor vehicle, including a trailer, by a motor vehicle dealer."
- MOVED CSHB 415(TRA) OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 294
"An Act establishing the division of marine transportation;
establishing the Alaska Marine Transportation Authority Board
and the position of director of the division of marine
transportation, and assigning the powers and duties of each;
making conforming amendments; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 372
"An Act relating to highway design flexibility and to the
assumption by municipalities of certain duties related to
highways."
- MOVED CSHB 372(TRA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 415
SHORT TITLE: USED MOTOR VEHICLE SALES
SPONSOR(s): TRANSPORTATION
02/25/08 (H) READ THE FIRST TIME - REFERRALS
02/25/08 (H) TRA, JUD
03/18/08 (H) TRA AT 1:00 PM CAPITOL 17
BILL: HB 294
SHORT TITLE: MARINE TRANSPORTATION ADVISORY BOARD
SPONSOR(s): REPRESENTATIVE(s) WILSON, LEDOUX, SEATON
01/04/08 (H) PREFILE RELEASED 1/4/08
01/15/08 (H) READ THE FIRST TIME - REFERRALS
01/15/08 (H) TRA, FIN
02/25/08 (H) SPONSOR SUBSTITUTE INTRODUCED
02/25/08 (H) READ THE FIRST TIME - REFERRALS
02/25/08 (H) TRA, FIN
03/11/08 (H) TRA AT 5:00 PM CAPITOL 17
03/11/08 (H) Heard & Held
03/11/08 (H) MINUTE(TRA)
03/18/08 (H) TRA AT 1:00 PM CAPITOL 17
BILL: HB 372
SHORT TITLE: HIGHWAY DESIGN FLEXIBILITY/MUNICIPALITIES
SPONSOR(s): REPRESENTATIVE(s) BUCH
02/19/08 (H) READ THE FIRST TIME - REFERRALS
02/19/08 (H) TRA, FIN
03/06/08 (H) TRA AT 1:00 PM CAPITOL 17
03/06/08 (H) Heard & Held
03/06/08 (H) MINUTE(TRA)
03/18/08 (H) TRA AT 1:00 PM CAPITOL 17
WITNESS REGISTER
DAVID SCOTT, Staff
to Representative Johansen
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 415 on behalf of the sponsor,
Representative Johansen, chair of the House Transportation
Standing Committee.
CLYDE "ED" SNIFFEN, Senior Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 415, provided
background information.
JOHN COOK, Legislative Director
Alaska Auto Dealers Association
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 415.
CLIFF STONE, Staff
to Representative Peggy Wilson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented CSSSHB 294, Version O, on behalf
of one of the joint prime sponsors, Representative Wilson.
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as one of the joint prime sponsors of
SSHB 294.
DENNIS HARDY, Deputy Commissioner of Marine Operations
Alaska Marine Highway System
Department of Transportation & Public Facilities
Juneau, Alaska
POSITION STATEMENT: Expressed concerns with CSSSHB 294, Version
O.
RICHARD WELSH, Assistant Attorney General
Transportation Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Expressed concerns with SSHB 294.
BRIAN KANE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: During hearing of SSHB 294, answered
questions.
GINGER FORTIN
Homer, Alaska
POSITION STATEMENT: Testified that SSHB 249 will improve the
existing ferry system.
REPRESENTATIVE BOB BUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 372.
DEBORAH BREVOORT, Staff
to Representative Bob Buch
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 372, Version L, on behalf of
the sponsor, Representative Buch.
JEFF OTTESEN, Director
Division of Program Development
Department of Transportation & Public Facilities (DOT&PF)
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 327, expressed
concerns.
PETER PUTZIER, Senior Assistant Attorney General
Transportation Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 327, expressed
concerns.
MARK NEIDHOLD, Chief Design & Construction Standards
Division of Design & Engineering Standards
Department of Transportation & Public Facilities
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 327, expressed
concerns.
ACTION NARRATIVE
CHAIR KYLE JOHANSEN called the House Transportation Standing
Committee meeting to order at 2:40:17 PM. Representatives
Doogan, Fairclough, Keller, and Johansen were present at the
call to order. Representative Salmon arrived as the meeting was
in progress. Also in attendance was Representative Doll.
HB 415-USED MOTOR VEHICLE SALES
2:40:26 PM
CHAIR JOHANSEN announced that the first order of business would
be HOUSE BILL NO. 415, "An Act relating to disclosures required
for the sale of a used motor vehicle, including a trailer, by a
motor vehicle dealer."
2:40:48 PM
DAVID SCOTT, Staff to Representative Johansen, Alaska State
Legislature, explained that HB 415 removes language governing
the sale of used vehicles that is no longer of benefit to
consumers, dealerships, or the state. This legislation repeals
AS 45.25.465(c), which requires that all used vehicles for sale
by a dealer are posted with a notice specifying that the vehicle
isn't subject to Alaska's "lemon law;" isn't covered under a
manufacturer's warranty; wasn't manufactured in a foreign
country, including Canada. Mr. Scott pointed out that the
consumer protection provided in AS 45.25.465(c) isn't applicable
because used cars aren't subject to Alaska's lemon laws and
aren't sold with a manufacturer's warranty. Furthermore, the
dealer must also provide whether the vehicle was manufactured in
a foreign country, as specified in AS 45.25.470. Mr. Scott
opined that AS 45.25.465(c) leaves dealers subject to lawsuits
and is a violation of unfair trade practices, which allows for
lawsuits that demand treble damages and reimbursement of full
legal costs, even when consumers haven't suffered any actual
harm or damages. Although one may argue that there can never be
too much consumer protection, when the state places undue
burdens on Alaska's businesses while providing no additional
consumer protection it's time to reevaluate. Mr. Scott then
noted that the legislation includes retroactivity clauses on
page 1, lines 11-14 and page 2, line 1, which allow any case to
continue to its conclusion without affecting the rights of
Alaskans that are now in court while precluding future court
action.
2:43:30 PM
REPRESENTATIVE FAIRCLOUGH moved to adopt CSHB 415, Version 25-
LS1546\C, Bannister, 3/17/08, as the working draft. There being
no objection, Version C was before the committee.
2:44:09 PM
CLYDE "ED" SNIFFEN, Senior Assistant Attorney General,
Commercial/Fair Business Section, Civil Division (Anchorage),
Department of Law (DOL), referred to DOL's letter of support for
SB 164, the companion to HB 415, dated February 19, 2008. The
aforementioned letter indicates that when AS 45.25.465(c) was
originally drafted it was intended to apply only to current
model used vehicles and the expansion such that it was applied
to all used vehicles was due to a drafting error. However,
since that letter was drafted, DOL has learned that the
expansion was an intentional act on behalf of U.S.
Representative Gruenstein (ph). Even so, DOL supports this
proposed change because it is fairly redundant. At the time the
statute was passed, current model vehicles were particularly
susceptible to misperceptions by consumers during the purchasing
process because they looked new when in fact they were actually
used vehicles. Furthermore, if those vehicles were manufactured
for sale in Canada, the North American manufacturer's warranty
and the lemon law didn't apply. Those were the main consumer
harms that were originally trying to be addressed. The
expansion of the statute to all used vehicles did impose other
burdens on automobile dealers for the remaining inventory of
used cars that were already protected under existing statutes.
Because it's already required that dealers disclose to
consumers, in writing, whether the vehicle is manufactured for
sale in Canada and because the Federal Trade Commission (FTC)
already requires a window sticker that clearly explains whether
a vehicle is under warranty, those issues have been addressed
for a number of years already. Therefore, expanding the
requirements to the entire inventory of used cars of the dealer
seems unnecessary. He noted that in 2006 there was an amendment
to Title 8 that actually removes reference to current model
vehicles from the Automobile Dealer Act. Furthermore, in the
last couple of years most major auto manufacturers extended
their warranties to vehicles sold in North America. Mr. Sniffen
opined that there doesn't seem to be an issue of used current
model vehicles coming into Alaska as was once the case. Taking
all of the aforementioned into consideration, it seems that
consumers are adequately protected, he said.
2:48:15 PM
REPRESENTATIVE DOOGAN related his understanding then that this
[statute] was originally intended to require a sticker
specifying that current model used vehicles brought over from
Canada were used.
MR. SNIFFEN noted his agreement with that understanding.
REPRESENTATIVE DOOGAN then inquired as to how folks would be
able to determine if a vehicle being sold as new is actually a
used vehicle from Canada, if this [statute] is eliminated.
MR. SNIFFEN stated that a person will be able to tell because of
the FTC's buyer's guide that's displayed in the window of the
vehicle and the written disclosure in the paperwork that the
vehicle was manufactured for sale in Canada. The latter should
raise flags to the potential buyer that the vehicle is likely a
used vehicle.
2:49:46 PM
REPRESENTATIVE DOOGAN directed attention to the retroactivity
section of HB 415, which specifies that "it" wouldn't apply to
any suit filed prior to January 1, 2008. He asked if the
aforementioned would disadvantage those "who might be trying to
beat us on the finish line."
MR. SNIFFEN acknowledged that there was concern in relation to
SB 164, the companion to HB 415, regarding depriving the rights
of those with existing cases. He noted that he, in fact, is
involved in a couple of existing cases. He said there was no
desire to have the retroactivity to unnecessarily interfere with
the rights of people being represented to go forward and
recover. The original retroactive language, to the extent
allowed by law, makes this retroactive to 2004. Mr. Sniffen
explained that the retroactivity language was changed such that
those lawsuits pending prior to January 2008 could continue and
the retroactivity would only apply to actions brought forward
after January 1, 2008. Therefore, no lawsuits are being
extinguished, he clarified.
2:51:49 PM
JOHN COOK, Legislative Director, Alaska Auto Dealers
Association, opined that this comes down to an issue of fairness
and Alaska jobs. As previously testified, these requirements
for stickers are redundant and unnecessary. Because it's an
unfair trade practice, there doesn't need to be actual harm or
damages suffered by the consumer. He recalled that in the 13
years he was in the automobile business he never received any
comments related to the sticker that made a difference on
someone's purchase. Mr. Cook remarked that it's troubling that
since no actual harm or damages has to be proven, lawsuits could
proceed which could close down what are largely family-owned
small Alaska-based businesses. A class action lawsuit of the
magnitude of one that's proceeding now would either bankrupt or
close nearly any Alaska-based business. Mr. Cook related the
Alaska Auto Dealers Association's support of HB 415 and strongly
urged the committee to report it from committee today.
2:54:51 PM
CHAIR JOHANSEN closed public testimony.
2:55:02 PM
REPRESENTATIVE FAIRCLOUGH moved that the committee report CSHB
415, Version 25-LS1546\C, Bannister, 3/17/08, out of committee
with individual recommendations and accompanying fiscal notes.
There being no objection, CSHB 415(TRA) was reported from the
House Transportation Standing Committee.
The committee took an at-ease from 2:55 p.m. to 2:59 p.m.
HB 294-MARINE TRANSPORTATION: BOARD & DIVISION
2:59:11 PM
CHAIR JOHANSEN announced that the next order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 294, "An Act
establishing the division of marine transportation; establishing
the Alaska Marine Transportation Authority Board and the
position of director of the division of marine transportation,
and assigning the powers and duties of each; making conforming
amendments; and providing for an effective date."
2:59:23 PM
REPRESENTATIVE FAIRCLOUGH moved to adopt CSSSHB 294, Version 25-
LS1220\O, Kane, 3/18/08, as the working document. There being
no objection, Version O was before the committee.
The committee took a brief at-ease at 2:59 p.m.
3:00:13 PM
CLIFF STONE, Staff to Representative Peggy Wilson, Alaska State
Legislature, related that the joint prime sponsors took the
committee's comments to heart. He then pointed out that
beginning on page 1 of Version O the term "Authority" was
changed to "Advisory" throughout the legislation. The language
in the long title was changed such that it no longer refers to
the establishment of the division of marine transportation and
the position of director of the division of marine
transportation and setting out the powers and duties of it.
Version O no longer includes Article 3, formerly titled "Alaska
Marine Highway Organization and Operations," which was located
on page 1, line 14 through page 2, line 23, but rather now
refers to "Article 3. Alaska Marine Transportation Advisory
Board." He explained that Article 3 is the Alaska Marine
Highway System (AMHS) organization and operations, which
involved a couple of new sections of statute. The section
establishing the division of marine transportation was deleted
as was the section regarding the Alaska marine transportation
director. In response to Chair Johansen, Mr. Stone confirmed
that the effect is that [AMHS] would remain part of the
Department of Transportation & Public Facilities (DOT&PF) as is
the case currently. Mr. Stone informed the committee that
although the board composition remains, it's now located on page
2 and has been re-arranged a bit, such that all the communities,
save the Ketchikan Gateway Borough, are listed in their
[respective] district.
3:05:34 PM
REPRESENTATIVE DOOGAN related his understanding that in Version
O only the Ketchikan Gateway Borough would continue to be
specified singly as having a member on the board, while the
other communities, originally listed separately in Version L,
are now included with other communities in their district in
Version O.
MR. STONE noted his agreement with that understanding. In
further response to Representative Doogan, Mr. Stone recalled
that at a prior committee hearing there was discussion regarding
the need to consolidate for simplicity. For example,
there was to be one member position representing Haines and
Skagway while in Version O Juneau is added to the district that
includes Haines and Skagway.
3:07:26 PM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, explained
that of the six nonregional members that were appointed,
previously there was a designation that three of those had to
come from particular cities or regions. Since Ketchikan didn't
really fit into the regional representation, it's left as one of
the six nonregional members. He noted that there are no
restrictions on five of the other six at-large seats. In
response to Representative Doogan, Representative Seaton
confirmed that the reason for the arrangement is geography. He,
too, recalled that at the last hearing, the committee expressed
concern that there were too many designated regional seats.
Therefore, Version O took two of those three [regional seats] of
the six at-large seats from regional apportion.
3:08:58 PM
MR. STONE, continuing his review of the changes encompassed in
Version O, pointed out that the language of proposed AS
19.65.120(d) now specifies the following: "Board members serve
at the pleasure of the governor." rather than the language "The
governor may remove a member of the board only for cause." in
Version L. In response to Representative Fairclough, Mr. Stone
confirmed that the language in proposed AS 19.65.180(a) of
Version O has been changed to say, "The board shall select not
more than three nominees for the position of director or deputy
commissioner of the department's division with responsibility
for marine transportation," rather than "The board shall select
not more than three nominees for the position of director of the
department's division with responsibility for marine
transportation". The aforementioned was the drafter's way of
getting around the deletion of the section creating the
division. He related that the prime sponsors felt the board
should have a proactive role in selecting the three nominees
that are forwarded to the commissioner for consideration.
3:11:32 PM
REPRESENTATIVE SALMON inquired as to why the Ketchikan Gateway
Borough wasn't included in one of the regional districts.
MR. STONE answered that to some degree it was a matter of
geography. However, he acknowledged that it could be argued
that Kodiak is off by itself and thus should have regional
representation. Ketchikan is one of the first hubs that is
reached when traveling north from Bellingham, and thus the
sponsors felt it could stand alone in regard to representation
on the board. In further response to Representative Salmon, Mr.
Stone pointed out that page 2, line 31, specifies the following:
"For members being appointed under (a)(2)-(6) of this section,
there shall be at least one resident of the Ketchikan Gateway
Borough."
3:13:23 PM
REPRESENTATIVE SALMON asked if there is any way in which the
representation could only end up being from Southeast without
any representation from the larger portions of Alaska.
MR. STONE explained that proposed AS 19.65.120(6), which refers
to the two members of the public at large, was left so that a
member of the public from the Railbelt or Fairbanks could be
appointed to the board. Therefore, one of the board members
from paragraphs (2)-(5) would have to be from Ketchikan.
However, paragraph (6) could be filled by a member from
Ketchikan. He specified that of the six seats, at least one
must be from Ketchikan, which the sponsors felt provided the
governor a fairly broad area from which to choose.
3:15:20 PM
REPRESENTATIVE DOOGAN related his understanding that the
geographical necessity language applies to proposed AS
19.65.120(1)(a)-(e) and then there is a set of at-large members
who could be from anywhere, except that one must be from the
Ketchikan Gateway Borough. Therefore, in theory there would be
six members of the board who had been defined geographically and
the other five could be from anywhere, except that one has to be
from Ketchikan.
MR. STONE noted his agreement.
3:16:27 PM
REPRESENTATIVE FAIRCLOUGH asked if the new composition of the
board reflects the current Marine Transportation Advisory Board
(MTAB).
MR. STONE replied no, adding that there are some subtle changes.
3:17:10 PM
MR. STONE, in response to Chair Johansen, explained that for the
commissioner position the governor will take input and then
select someone from a list of nominees that have applied.
Typically, for the position of deputy commissioner the governor
confers with the commissioner; the commissioner has a great deal
of input into who is selected [for those positions]. The
decisions of who to [hire] for the deputy directors, legislative
liaisons, and the partially exempt positions can be delegated to
the commissioner by the governor.
3:18:46 PM
CHAIR JOHANSEN related his understanding then that the board
will vet a pool of applicants, come up with three names, and
submit them to the governor. He then inquired as to what
happens if the governor doesn't like any of the names submitted.
MR. STONE clarified that the legislation specifies that those
three names will be submitted to the commissioner who then can
confer with the board, accept the names, and present the names
to the governor. In further response to Chair Johansen, Mr.
Stone opined that the governor has the prevue to go outside of
the board's selection and select whomever she desires.
3:19:59 PM
REPRESENTATIVE DOOGAN surmised then that MTAB selects three
names for the position of running the AMHS and those names are
sent to the commissioner of DOT&PF, who then makes the choice.
MR. STONE stated his agreement.
3:20:38 PM
REPRESENTATIVE FAIRCLOUGH directed attention to the memorandum
from Legislative Legal and Research Services dated March 18,
2008, which addresses the fact that statute doesn't include a
deputy director position for AMHS. The last sentence of that
memorandum says: "Otherwise, you could be left with the board
nominating people for a position that no longer officially
exists." She asked if Mr. Stone wanted to speak to that.
MR. STONE said the [lack of statute referencing a deputy
director for AMHS] is why the language on page 3, lines 30-31,
was kept fairly broad.
3:22:30 PM
CHAIR JOHANSEN, referring to the language on page 4, lines 3-4,
said that although he understands the need for nominees to have
familiarity with marine engineering or maritime operations, he
indicated he doesn't want to limit the options.
MR. STONE stated that Representative Wilson, one of the joint
prime sponsors, probably wouldn't have problems deleting the
language [on page 4, lines 3-4].
REPRESENTATIVE SEATON explained that the intent of proposed AS
19.65.180(a) is to [eliminate] the position being a strictly
political appointee and instead have someone with marine highway
experience and expertise. He acknowledged that since this is a
recommendation to the commissioner and the governor actually
does the appointing, it can always be ignored.
CHAIR JOHANSEN opined that he doesn't believe that the
experience and expertise has to be spelled out in statute, as he
said he believes the MTAB will take that into consideration. He
reiterated that he would hate to exclude a brilliant individual
who was interested in serving as the deputy director of AMHS.
3:25:46 PM
REPRESENTATIVE FAIRCLOUGH informed the committee that she became
the executive director of Standing Together Against Rape (STAR)
in Anchorage with no experience in sexual assault, but with a
background in management. Although some would say that wasn't a
good fit, she pointed out that her management experience
resulted in the issue of domestic violence and sexual assault
being discussed more than prior to her service for STAR. She
further pointed out that under the new criteria STAR established
after she left the position, she wouldn't qualify to run the
organization. She noted that she will offer an amendment
regarding the language on page 4, lines 3-4, which she
characterized as prescriptive and restrictive. Representative
Fairclough stressed, "I don't think that you have to have
someone in the field of marine engineer and maritime operation
to be able to do the job, but please note that I recognize the
frustration that we have currently with how that has not been
functional in the past." She then expressed the need to review
an individual's entire package as well as the continually
changing job market. Although the experience would be
preferable, it shouldn't be required, she concluded.
3:28:29 PM
REPRESENTATIVE DOOGAN inquired as to how restrictive the term
maritime operations is.
REPRESENTATIVE SEATON related his belief that there's a lot of
difference between running a downtown business and a ferry
system. The desire was to ensure that the position is filled
with an individual who has experience with ferries and the
various aspects of the field.
3:29:57 PM
REPRESENTATIVE DOOGAN then inquired as to what the limitation is
if the term maritime operation isn't defined. He questioned
whether running a tugboat is the same as running a fleet of
tugboats, is the same as being the captain of a ferry, and is
the same as having management experience in the ferry system.
REPRESENTATIVE SEATON remarked, "You're juggling trying to
figure out how you make a fit so that we make sure we have the
expertise to the run ferry system." He said he understood the
position of some of the committee members. For instance, an
individual who has experience running an airport, but no
maritime experience may be [an acceptable nominee].
Representative Seaton then commented that if the committee
decides to eliminate the language referring to experience, MTAB
will be well aware that the intent is to have a nominee with
experience in maritime operations.
CHAIR JOHANSEN commented that due to the Ocean Rangers program,
it will be difficult to hire a marine engineer in Alaska.
3:32:05 PM
MR. STONE, continuing his review of Version O, pointed out that
the language in Version L on page 5, lines 10-12, wasn't
included in Version O. Furthermore, Version O no longer
includes the route study, which was located on page 6, lines 1-
7, of Version L. He then pointed out that under Version O, the
legislation would become effective immediately since the
existing transportation advisory board, per the administrative
order, will sunset in May 2008.
3:33:10 PM
REPRESENTATIVE SEATON pointed out that the committee should have
a conceptual amendment, which read [original punctuation
provided]:
Page 4 after line 12 add "(d) The board has the
express authority to offer a request for proposal to
construct a 2 year ferry schedule."
3:33:57 PM
CHAIR JOHANSEN then turned to public testimony.
3:34:16 PM
DENNIS HARDY, Deputy Commissioner of Marine Operations, Alaska
Marine Highway System, Department of Transportation & Public
Facilities, speaking to Version O, opined that the experience
specified for the director or deputy commissioner of AMHS isn't
necessarily the criteria that would lead to the selection of a
good leader or a good communicator with the public or the
legislature. He then said the department needs some
clarification regarding what is meant by the language in
proposed AS 19.65.195, which says: "The department shall
provide staff for the board." Currently, the department
provides some clerical assistance to the existing MTAB. This
legislation may necessitate additional support for the board,
for example, in developing a strategic plan. In response to
Chair Johansen, Mr. Hardy confirmed that his testimony is the
official position of the department.
3:36:12 PM
REPRESENTATIVE DOOGAN asked if Mr. Hardy is expressing the need
for the legislation to include a definition of the staff work it
would be expected to provide.
MR. HARDY answered that he wasn't sure it's necessary in the
legislation, but some clarification is necessary for the fiscal
note to be prepared.
3:37:14 PM
REPRESENTATIVE SEATON explained that the planning takes place in
two locations in the legislation. On page 1 of Version O, the
legislation refers to the consultation with MTAB regarding the
requirement of the comprehensive long-range plan. The
aforementioned is an existing requirement. Page 4, lines 9-10,
refers to the strategic plan of which he presumed AMHS is
already doing the missions, core values, and initiatives. The
board is re-involved with DOT&PF in construction of the
strategic plan, which he also presumed the department must
already be doing. Therefore, he characterized it as a
coordination effort such that MTAB is involved in the strategic
plan. In response to Chair Johansen, Representative Seaton
said that the staff support DOT&PF provides to MTAB currently
provides is sufficient to carry out the duties encompassed in
Version O. The only difference is that MTAB would be involved
in the planning conducted by the department, such as the
strategic plan. However, there wouldn't be separate staff for
MTAB. In further response to Chair Johansen, Representative
Seaton confirmed that the next committee of referral for SSHB
294 is the House Finance Committee.
3:39:35 PM
REPRESENTATIVE FAIRCLOUGH inquired as to whether there is an
updated fiscal note because besides board support, the
legislation "is asking for the authority to request that the
expressed authority to offer a proposal to construct a two-year
ferry cycle." She opined that the aforementioned and updating
the strategic plan will require time from the department that
should be included in the fiscal note. Although Representative
Fairclough said she wouldn't oppose the legislation from moving
from committee, an updated fiscal note should be prepared.
3:40:16 PM
REPRESENTATIVE DOOGAN clarified, "The original question here was
simply to establish that we weren't going to try and write a
scope a work into this bill with the understanding that ...
somewhere along the line here somebody's going to have to come
up with a fiscal note."
3:40:43 PM
RICHARD WELSH, Assistant Attorney General, Transportation
Section, Civil Division (Juneau), Department of Law (DOL), said
that his principle concern relates to the legislation's effect
on the governor's power of appointment as provided in Article
III, Section 1 of the Alaska State Constitution. The
aforementioned authority is qualified somewhat by Article 3,
Sections 25-26, which provides the legislature confirmatory
authority over heads of principle departments and members of
boards. He related his view that the proposed AS 19.65.120(a)
encroaches on the governor's power of appointment as the
legislature's power of appointment only [exists] as far as
granted in Article III, Sections 25-26 of the Alaska State
Constitution. Since this board isn't going to serve as the head
of a principle department or a regulatory or quasi-judicial
agency, he opined that proposed AS 19.65.120(a) would be
unconstitutional. Mr. Welsh mentioned that he had concern about
the nomination of the three candidates due to discussions at
prior hearings. However, today's discussion seems to indicate
the sponsors' recognition that if the commissioner deems the
three nominees from MTAB as unacceptable, the commissioner can
select whomever he/she deems appropriate.
3:43:31 PM
REPRESENTATIVE DOOGAN surmised then that Mr. Welsh doesn't
believe the legislature has the authority to confirm the members
of MTAB because MTAB doesn't fit the constitutional definition
of what the legislature is allowed to confirm.
MR. WELSH replied yes, adding that the Alaska Supreme Court
addressed this issue in the case of Bradner v. Hammond, which is
found at 553 P.2d 1.
3:44:26 PM
MR. WELSH then turned to the language on page 3, line 30, which
refers to the "director or deputy commissioner." He expressed
the need to sort that out because it leaves a question in his
mind.
3:45:36 PM
REPRESENTATIVE DOOGAN inquired as to the opinion of the
legislative drafter with regard to the legislature's power to
confirm the members of MTAB.
3:46:11 PM
BRIAN KANE, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, said that he would have to look into
whether it falls within the legislature's purview to confirm
members of MTAB as specified on page 2, lines 4-6, of Version O.
3:47:44 PM
MR. STONE said that DOL may have a point as the language used
for the Aviation Advisory Board says, "The Aviation Advisory
Board consists of the following 11 members, who are appointed by
and serve at the pleasure of the governor:". He said that he
wasn't sure how MTAB is different from the other boards and
commissions that come before the legislature for confirmation.
3:48:46 PM
REPRESENTATIVE DOOGAN remarked that he is reluctant to concede
the legislature's authority based on one attorney's opinion, an
attorney who works for the governor. He expressed the need to
hear from the legislature's attorneys before doing anything
definitive regarding the legislature's ability to confirm
members of MTAB.
3:49:24 PM
GINGER FORTIN, opined that SSHB 249 will improve the existing
ferry system because some members of MTAB will have to be
residents of ferry ports. She expressed hope that these members
will have ridden the ferry and thus will have less of a chance
of having the scheduling problems of 2008. Ms. Fortin said she
hoped this legislation would be passed this session.
3:50:17 PM
CHAIR JOHANSEN announced that SSHB 294 would be held over to
give sponsors time to research the question [regarding the
legislature's ability to confirm members of MTAB]. He informed
the committee that it would hear the legislation next week.
3:50:46 PM
REPRESENTATIVE SEATON asked if the committee has any questions
regarding the amendment he mentioned earlier.
3:51:02 PM
REPRESENTATIVE FAIRCLOUGH commented that until the public
hearing is closed, she didn't feel the committee can really
discuss [amendments]. She noted that she has a couple of
conceptual amendments that she may want to offer. She added
that she doesn't support the amendment provided by
Representative Seaton.
3:51:45 PM
CHAIR JOHANSEN closed public testimony.
3:51:52 PM
REPRESENTATIVE FAIRCLOUGH moved that the committee adopt
Conceptual Amendment 1, as follows:
Page 1, line 9:
Delete "and improvement"
CHAIR JOHANSEN objected.
3:52:11 PM
REPRESENTATIVE FAIRCLOUGH explained that the language "and
improvement" presupposes that the legislature will invest more
funds and implies that there will be improvement to the [ferry]
system, in some manner. Representative Fairclough said that
although she supports improvement of the system, it would be
clearer to state that a marine highway plan needs to be
developed.
3:52:51 PM
CHAIR JOHANSEN related his preference to let the sponsors
address the specific points brought up during the hearing prior
to adding and/or deleting language.
[The committee treated Conceptual Amendment 1 as withdrawn.]
3:53:09 PM
REPRESENTATIVE FAIRCLOUGH then informed the committee that she
plans to offer Conceptual Amendment 2, as follows:
Page 2, line 6-7:
Delete "The board shall be composed of the
following members:"
Delete line 8 through page 3, line 1
Reletter accordingly.
REPRESENTATIVE FAIRCLOUGH said that she will probably oppose the
legislation in its totality, although she won't oppose it from
moving [out of this committee]. Speaking to the sponsors and
those frustrated with poor ferry service, she pointed out that
to some of the communities served by the ferry system other
transportation modes are offered. She acknowledged that there
are some communities that need to have improved ferry service
schedules. Representative Fairclough opined, "If we expect to
improve our ferry system, we cannot just have marine highway
people talking about it. The entire legislature needs vested in
being able to support, propose amendments and changes, and fund
those changes." She then highlighted that the legislature, as
it tries to complete its business in 90 days, has created many
advisory boards/committees to provide information in which she
opined elected officials should be involved so that there is
"buy-in" to promote the change desired in the system. The
committees are doomed to fail otherwise, she remarked.
Therefore, she further opined that it's the responsibility of
the House and Senate Transportation Standing Committees to
establish service levels and review how the funds are allocated
as there are a limited amount of resources. She questioned how
the legislature can discuss improving a system if it can't be
maintained. Furthermore, the advisory board will only be able
to submit three names while costing the state $150,000, which
the governor or the commissioner doesn't have to accept. She
then emphasized that the legislature needs to provide a
framework inside DOT&PF to guide the administration in regard to
how the legislature believes funds should be invested.
REPRESENTATIVE FAIRCLOUGH inquired as to how much it costs for
air transportation and ferry transportation into communities.
She also requested information regarding which communities are
on the road system and which aren't. She said that those
communities that aren't on the road system need more subsidies
inside the ferry system than other communities.
3:57:55 PM
CHAIR JOHANSEN related his view [Version O] presents a decent
balance for board members of MTAB. He then pointed out that
Conceptual Amendment 2 would basically gut SSHB 294, which he
said would be out of order. With regard to the references of a
subsidy to AMHS, Chair Johansen said that the only reason the
funds provided to AMHS can be referred to as a subsidy is
because there is a fare box, which he likened to a toll. Chair
Johansen opined that it is unfair to characterize it as a
subsidy.
3:59:40 PM
REPRESENTATIVE FAIRCLOUGH pointed out that most roads in Alaska
are subsidized. She clarified that when she refers to a subsidy
she doesn't mean it negatively but rather as a realization in
fiscal responsibility in planning.
4:00:14 PM
CHAIR JOHANSEN announced that SSHB 294 would be held over.
4:00:36 PM
The committee took an at-ease from 4:00 p.m. to 4:01 p.m.
HB 372-HIGHWAY DESIGN FLEXIBILITY/MUNICIPALITIES
[Due to technical difficulties there is no audio for the
following five minutes. The minutes were reconstructed from the
secretary's notes.]
4:01:55 PM
CHAIR JOHANSEN announced that the final order of business would
be HOUSE BILL NO. 372, "An Act relating to highway design
flexibility and to the assumption by municipalities of certain
duties related to highways."
4:02:16 PM
REPRESENTATIVE FAIRCLOUGH moved that the committee adopt as the
working document Version 25-LS0525\L, Kane, 3/13/08. There
being no objection, Version L was before the committee.
4:02:35 PM
REPRESENTATIVE BOB BUCH, Alaska State Legislature, reminded the
committee that context sensitive solutions (CSS) is a process
for the design of new roads and redesign of old roads in which
all of the stakeholders are involved from the beginning. Under
CSS, community involvement is expanded when the road is being
designed and also includes experts with different perspectives.
Most importantly, these folks are brought in early in order to
take into account all the different uses of the road.
Representative Buch related that CSS is being used all over the
nation with great success. In fact, the Federal Highway
[Administration] (FHWA) has as one of its strategic goals to
have CSS adopted in all 50 states by 2007. Representative Buch
opined that CSS has reduced controversies in roads, the number
of lawsuits, and has resulted in better roads. According to the
FHWA, 43 states have implemented CSS.
REPRESENTATIVE BUCH acknowledged that last week the committee
expressed concerns, which he subsequently discussed with the
Department of Transportation & Public Facilities (DOT&PF) and
addressed in Version L. He mentioned that to this point there
have been four committee substitutes (CS), every concern has
been addressed, and Legislative Legal and Research Services has
made it legally sound. Therefore, Representative Buch asked the
committee to support [Version L].
4:05:16 PM
REPRESENTATIVE FAIRCLOUGH asked from who the facts
Representative Buch related come.
REPRESENTATIVE BUCH related that he has worked with a community
council on this matter for years and has received much
information from a community councilman who has been involved
with this issue for over a decade and who testified at a prior
hearing. Furthermore, there is a web site that has all of the
aforementioned information.
4:05:35 PM
[Recording starts.]
REPRESENTATIVE BUCH recalled giving staff a DVD that reviewed
this and included web sites and information. Basically, this is
something that the FHWA has been promoting for some time, and
therefore most of the information came from FHWA.
4:06:24 PM
REPRESENTATIVE FAIRCLOUGH said she will check with the FHWA.
4:06:39 PM
DEBORAH BREVOORT, Staff to Representative Bob Buch, Alaska State
Legislature, speaking on behalf of the sponsor, Representative
Buch, noted that she will be referring to Version 25-LS0525\L.
She recalled that last week the committee expressed the need for
the legislation to contain language that allows DOT&PF to scale
the CSS process to the complexity, size, and scope of a
particular project. She further recalled that Representative
Neuman and DOT&PF were concerned with the long list of
stakeholders in the previous version because different folks
would come forward and ask to be added to the list. To address
those concerns, on page 2, lines 9-14, the following language
was added:
(d) In carrying out the design process described in
(c) of this section, the commissioner may
(1) consult with affected citizens, elected
officials, interest groups, and other stakeholders
appropriate for a particular project; and
(2) scale the process commensurate with the
scope, complexity, and effect of the project.
MS. BREVOORT noted that the aforementioned language was provided
by DOT&PF. Another key change in the above subsection is use of
the word "may" rather than "shall." The belief, she related,
was that the term "may" would provide the commissioner more
flexibility and avoid lawsuits due to the discretion it
provides. Ms. Brevoort then recalled that DOT&PF wanted to be
sure that this legislation only applied to those projects
beginning after the effective date of the legislation, which is
now specified on page 2, lines 30-31. The other change embodied
in Version L is on page 1, line 6, which uses the term
"principles" rather than "standards."
4:10:13 PM
MS. BREVOORT, in response to Representative Buch, said that she
can provide members a handout from the CSS web site, which is in
partnership with FHWA. The web site relates that Alaska is not
one of the 43 states employing CSS. The information also comes
from the Anchorage Road Coalition and the American Association
of State Highway and Transportation Officials (AASHTO).
4:11:19 PM
REPRESENTATIVE FAIRCLOUGH clarified that she is interested in
specific studies with specific report dates in order to know who
collected the specific data.
MS. BREVOORT offered to obtain that information.
4:12:11 PM
REPRESENTATIVE FAIRCLOUGH then inquired as to who testified for
the Anchorage Road Coalition.
REPRESENTATIVE DOOGAN answered that it was a gentleman named,
Frank McQueary.
REPRESENTATIVE BUCH, in further response to Representative
Fairclough, specified that Mr. McQueary was with the Sand Lake
Community Council. Mr. McQueary has been involved with this
process for 15 years, although he doesn't have an engineering
degree. The research mainly came through highway engineers and
their particular design process in the Lower 48.
REPRESENTATIVE FAIRCLOUGH informed the committee that she has
been involved in multiple projects that used CSS, and thus she
has a different perspective after serving on the Anchorage
Metropolitan Area Transportation Solutions (AMATS).
4:13:40 PM
JEFF OTTESEN, Director, Division of Program Development,
Department of Transportation & Public Facilities (DOT&PF),
opined that Representative Buch and DOT&PF have worked hard to
develop legislation that everyone can support, although it's not
quite there. He expressed concern that the legislation is
prescriptive rather than permissive, which is a risk. Forty-
three states have implemented CSS. Alaska should be on the
list, but Alaska isn't listed because the state's policy doesn't
use the term CSS. Mr. Ottesen related that DOT&PF takes issue
with the term CSS, which he characterized as a moving target.
Mr. Ottesen said Alaska adopted flexible design standards and
involved stakeholders in design much earlier than most states.
Furthermore, [DOT&PF] has been training with a nationally
prominent training center to involve nontraditional stakeholders
since the early 1990s. Since CSS has become a term of art, the
department has received training in CSS. Currently, CSS
approaches are utilized in all relevant projects and all
regions. For example, the highway-to-highway request for
proposals (RFP) specifically speaks to the team being trained in
CSS.
4:16:05 PM
MR. OTTESEN clarified that DOT&PF supports and already uses CSS.
The department's concern is how it's put on paper. From
experience, the department knows that prescriptive statutes can
be used to stall or kill a project. Most states that adopt the
CSS policy don't do so in statute. Of the four states that did
adopt the CSS policy in statute, three states utilized very
permissive language and the fourth state, without the permissive
language, has an exemption of liability. Therefore, those
states have allowed for the fact that the state shouldn't be
sued for these issues should they proceed to use CSS. Mr.
Ottesen related that the department's concern that CSS is a term
of art. The legislation points to a policy of the FHWA, and
therefore the state is tying its future to the policy of a third
party that can change its policies and can do so without any
notification or involvement of the state. As an example, Mr.
Ottesen informed the committee that the FHWA has a policy
regarding how scenic byway grants are selected. In 2008, FHWA
changed those criteria, didn't announce that to the states, or
ask states for input. The department happened to learn about
this after staff read about it on a web site.
4:18:37 PM
MR. OTTESEN then expressed concern that HB 372 doesn't allow any
exemptions. There are frequently categories of projects that
need exemption. For instance, an emergency response on a
failing bridge or a wash out during a flood. Again,
prescriptive language often gets interpreted in very specific
ways before a judge and without exemption language there is no
way out. In conclusion, Mr. Ottesen said that DOT&PF has
implemented and already does CSS and the risk is that this
legislation is prescriptive.
4:19:57 PM
REPRESENTATIVE DOOGAN asked if Mr. Ottesen considers the use of
the term "shall" as prescriptive.
MR. OTTESEN replied yes, adding that he's also referring to [the
way in which] it ties it to a list of things that the department
has to do. He reiterated his earlier comments that there are
other states with much more permissive language than that
specified in HB 372.
4:20:29 PM
REPRESENTATIVE DOOGAN related his understanding that HB 372 is
intended to get DOT&PF to design projects in a certain way,
which he said he wasn't sure how that could be achieved with
permissive language. Therefore, he surmised that at times the
department doesn't want to follow these requirements.
MR. OTTESEN replied no, and added "We don't want to have ...
someone be able to use this as a club against us if we have not
talked to every single group because we didn't know about the
new group that formed last week." Mr. Ottesen opined that the
reference to all stakeholders is a fairly broad list. He then
reiterated that DOT&PF already uses [CSS] in policy and design
manuals and the department isn't being sued, and therefore [the
existing process] is working successfully. He highlighted that
the department does flex its design standards and engage
stakeholders in the process.
4:22:33 PM
CHAIR JOHANSEN suggested that Representative Doogan and Mr.
Ottesen may be talking about two different "shalls."
REPRESENTATIVE DOOGAN inquired as to what Mr. Ottesen means when
he refers to prescriptive language.
MR. OTTESEN deferred to other staff scheduled to testify. He
then reiterated that only four states out of 42 or 43 have
chosen to go the statutory route. If 90 percent of the states
that have adopted CSS are doing so without statute, it can be
done other ways, he opined.
4:23:43 PM
REPRESENTATIVE DOOGAN surmised that DOT&PF would prefer not to
pass HB 372, but if it is passed the department wants it
changed.
MR. OTTESEN, in response to Representative Doogan, confirmed
that DOT&PF would prefer not to pass HB 372. However, if the
legislation is passed, it would want to change it. In fact, the
department did have a version of the legislation that doesn't
use the CSS term of art, but it speaks to the principles of CSS.
4:24:19 PM
PETER PUTZIER, Senior Assistant Attorney General, Transportation
Section, Civil Division (Juneau), Department of Law, echoed Mr.
Ottesen's testimony that the principle of CSS by itself isn't
problematic. The question is regarding how to get it on paper
if it is decided to be placed in statute. Mr. Putzier said he
will discuss the six legal issues with Version L. Firstly,
Section 1 is a mandate, but it is unclear how to meet that
mandate. For instance, he questioned how early is "early
enough" and what does "ongoing" mean. Section 1 opens up an
immediate problem of implementation, which he said he would
discuss later. Secondly, Version L requires DOT&PF to use a
design process that ensures consistency with federal CSS
principles. However, to his knowledge, no one can point to
where these principles are or exactly how these principles are
defined. A vague and ambiguous term is being applied. He then
questioned how the standard can be met and compliance proven.
He opined that CSS appears to be an "aspirational" goal, which
really isn't a principle, to get the community involved in the
design process. Thirdly, consideration of many specific factors
must occur. The aforementioned is what Mr. Ottesen refers to as
the prescriptive factors. Section 1 lists nine different
factors. In so far as those factors are required, the question
regarding whether each was adequately addressed is invited.
Therefore, anyone who is disgruntled with any given project
could challenge on the basis that the specific factors weren't
adequately met. The best analogy is with the National
Environmental Policy Act (NEPA), which is a procedural statute
that was passed in 1970 by the federal government to consider
environmental consequences. As everyone is aware, NEPA has
engendered massive amounts of litigation charging that there was
failure to adequately consider environmental consequences, the
analysis was flawed in some manner, or all viable alternatives
weren't considered. Therefore, even if the statute is merely
procedural, it can engender a tremendous amount of litigation,
he stated.
4:28:46 PM
MR. PUTZIER turned to the fourth issue, which is something that
he said he would need to follow-up. He noted that AS
19.10.160(a) specifies that DOT&PF must conform its standards as
closely as practicable to those adopted by AASHTO, while in
proposed AS 19.10.160(c) the legislation mandates compliance
with principles in the CSS system. Therefore, he expressed the
need to ensure that those two subsections aren't in conflict.
Mr. Putzier moved on to his fifth concern regarding the conflict
between AS 19.10.160(c) and (d) in which it's unclear whether
it's permissive or mandatory to consult with affected citizens.
Therefore, AS 19.10.160(c) and (d) need to be harmonized. With
regard to the sixth concern, Mr. Putzier opined that there is a
tort and civil liability aspect to this legislation that needs
to be explored. A spectrum of design choices can result in a
situation in which community/citizen involvement would've
resulted in one choice, while the process resulted in another
choice. The aforementioned, he opined, invites plaintiffs'
attorneys to challenge the design decisions made as a result of
this process. This is a very real danger, which seemed to be
recognized in Hawaii where waiver of liability provisions were
included. Mr. Putzier concluded by clarifying that he isn't
arguing against CSS as an idea, which he characterized as a
worthy concept. However, this legislation in its current form
requires uncertain procedures and principles, and virtually
guarantees litigation.
4:31:04 PM
REPRESENTATIVE FAIRCLOUGH requested that Mr. Putzier speak to
his experience with litigation on transportation projects.
MR. PUTZIER informed the committee that he has been representing
DOT&PF since December 1999 and represented DOT&PF, in a broad
spectrum, regarding construction claims, administrative
proceedings, and environmental litigation. He said that he has
represented DOT&PF in numerous venues.
REPRESENTATIVE FAIRCLOUGH inquired as to Mr. Putzier's
experience with challenges to the NEPA process and the impact in
terms of cost of the project and time involved.
MR. PUTZIER acknowledged that once a project is disputed, it can
take years and cost untold amounts of money in litigation fees
and additional studies. In further response to Representative
Fairclough, Mr. Putzier confirmed that DOL does bill DOT&PF, but
he didn't know what it totals at the end of the year. He noted
that he bills project by project, and thus could inform the
committee of the legal fees by project.
REPRESENTATIVE FAIRCLOUGH related her understanding that legal
fees can cut both ways, that is litigation can mean that the
department is challenged a lot or it isn't doing its job
appropriately.
4:34:09 PM
MR. PUTZIER, in response to Representative Doogan, confirmed
that DOT&PF gets sued as it is. In further response to
Representative Doogan, Mr. Putzier related his opinion that this
legislation would result in more litigation. He echoed his
earlier remarks that as consideration of these various factors
are required, it invites the question regarding whether DOT&PF
has done its job adequately. Therefore, an individual
disgruntled with a project can result in a good faith argument
that the department didn't adequately consider a specific matter
or group. He further pointed out that the factors aren't very
tangible and are factors on which reasonable people can differ.
"In so far as reasonable can differ and we're requiring
compliance, I see no other outcome but that there's probably
going to be litigation engendered," he opined.
4:36:09 PM
REPRESENTATIVE DOOGAN surmised then that there would be
litigation to define what is not defined or insufficiently
defined for the legal profession. Therefore, he asked if the
lawsuits would taper off or continue.
MR. PUTZIER reiterated his earlier analogy with NEPA litigation,
for which there has been no clarity. In further response to
Representative Doogan, Mr. Putzier confirmed that it's his
opinion that this proposed legislation opens up a legal hole of
undetermined depth for DOT&PF.
4:37:38 PM
REPRESENTATIVE FAIRCLOUGH outlined the steps in the process of
project proposal, public notification, design, and public
comment. She opined that the time when one can make the most
difference is about 15 years before a project starts. When a
project is first proposed and public notice goes out, few come
forward to speak. However, by the time the project reaches its
design phase, more community members come forward since the
project seems more real. The litigation arises in the first
phase, she noted. As the process continues, more people become
aware of the projects. Representative Fairclough related that
she supports CSS, but recalled when it was used on 15th Avenue
in Anchorage and the project went from a $1 million project to a
$15 million project. The more groups that are involved,
different ideas come forward, she said. She relayed that she
has watched projects languish for 10 years because various
groups feel disenfranchised. She suggested that she would be
supportive if there was a site on which notice [of projects] was
posted versus the state having to reach out to all groups.
4:42:50 PM
REPRESENTATIVE DOOGAN clarified that he was trying to get a
handle on the scope of the litigation on these projects. He
said he is unwilling to open up more options to delay things,
particularly when he believes there is already adequate
opportunity to do so. Therefore, he said he will have trouble
supporting HB 372 if it means that there will be more lawsuits,
more delays, and higher cost projects.
4:44:02 PM
REPRESENTATIVE FAIRCLOUGH pointed out that the legislature
establishes law at a "30,000-foot level" and allows the
departments to interpret that law. If CSS or its principles are
already being utilized by DOT&PF, then it would seem to solve
some of the problems, she remarked.
4:45:16 PM
MARK NEIDHOLD, Chief Design & Construction Standards, Division
of Design & Engineering Standards, Department of Transportation
& Public Facilities, echoed earlier testimony that DOT&PF is
already applying the principles of early and ongoing stakeholder
involvement in the project development process. He specified
that he chose not to use the term CSS because it's a moving
target. As early as 1991 DOT&PF offered training classes to
DOT&PF staff and consultants because it was the right thing to
do to meet the needs of all the affected people. In 2003 and
2004 additional training regarding the flexibility that existed
in the design standards was provided. Alaska is an AASHTO state
and per the federal regulations, Alaska is required to use
AASHTO's design standards on all highway projects that are part
of the National Highway System. He noted that virtually all of
those standards have been adopted for non-NHS projects and
state-funded projects. Mr. Neidhold reiterated that the
flexibility of CSS already exists in the [design] standards.
There is a range of values/standards; AASHTO and FHWA have
offered guidance with regard to applying flexibility in design
issues. He informed the committee that the current
environmental procedures manual and design procedures manual
identify the department's expectation at a management level that
the design project development staff use the early and ongoing
stakeholder development and coordination process when the
projects are developed. Currently, CSS isn't recognized by
name. With regard to the comment that CSS is a moving target,
Mr. Neidhold related that he has sat in on meetings of the
AASHTO subcommittee on design at the federal level during which
people have said that CSS stands for Consensus by all
Stakeholders. The aforementioned is untenable and would be like
trying to pass a bill unanimously. Furthermore, CSS includes
language specifying involving all stakeholders, which Mr.
Neidhold said is an impossible task. Mr. Neidhold informed the
committee that his staff is updating the environmental
procedures manual to include CSS, by name, while taking care to
incorporate CSS, as practiced by Alaska DOT&PF. He echoed
earlier testimony that since DOT&PF already uses CSS, it doesn't
see the need to address it in statute due to the potential
liability exposure.
4:50:56 PM
MR. NEIDHOLD recalled Representative Doogan's earlier comment
that DOT&PF doesn't want to have to apply CSS all the time, to
which Mr. Neidhold noted his agreement. He related that there
are many classes of projects in which the response to the
public's need warrants moving ahead without an involved public
involvement process. For example, a highway safety improvement
project in which the department has identified a guardrail end
terminal that isn't safe. It would be unreasonable to say that
DOT&PF has to go through an involved public process in order to
address that particular safety issue. Therefore, there are
projects on which DOT&PF doesn't want to be required to use CSS.
Mr. Neidhold then turned to Representative Fairclough's
statements regarding the process. He pointed out that DOT&PF is
charged with balancing the public need for the transportation
system with the impacts to the individual property owners and
other interest groups. The department, he opined, works hard to
address the balance in a manner that results in the greatest
public good with the least private harm. If prescriptive
statutory language that could potentially be construed as
requiring steps that the department was judged to have not done
or done inadequately is used, it could potentially impair
DOT&PF's ability to deliver projects, he opined. In conclusion,
Mr. Neidhold said, "And the bottom line is it's not DOT's
transportation system; the department is responding to the
public's need for their transportation system and we work very
hard through the public process to deliver projects that do just
that ...."
4:54:52 PM
MR. NEIDHOLD, in response to Representative Fairclough,
confirmed that principles or early and ongoing public
involvement are included. In further response to Representative
Fairclough, Mr. Neidhold confirmed that as a matter of federal
law, as part of Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU),
public involvement is required in the development of the initial
plan. Under SAFETEA-LU, the federal funding for the highway
transportation bill further required state transportation
organizations to engage the public with amendments to that
statewide transportation improvement plan (STIP). Therefore,
there's a very prescriptive requirement for public involvement
on the STIP.
4:56:01 PM
REPRESENTATIVE FAIRCLOUGH clarified that she is interested in
whether the federal government is already requiring CSS or not
and whether the state is applying it through principles in the
department's regulations, or is the department meeting the
federal requirements in a different method than outlined in CSS.
MR. NEIDHOLD responded that under the federal requirements for
the development of the STIP for the development of highway
system projects, early on in the development of the program/plan
as well as in the development of individual projects, there are
requirements for public involvement. Those requirements are
being met under the department's current procedures. Under
federal projects, the language in HB 372 wouldn't substantially
change how the department does business with respect to those
federal projects. With regard to state-funded projects,
although there isn't law that requires that process, DOT&PF is
already applying those.
4:57:45 PM
REPRESENTATIVE FAIRCLOUGH asked if all the factors specified in
the proposed legislation are being taken into account now and
the sponsor is seeking alignment with the federal requirements.
She then inquired as to what isn't in the legislation, besides
early and often public involvement, that the sponsor is trying
to address.
MR. NEIDHOLD responded that he believes the answer to that is
nothing. With regard to whether the department is addressing
all those issues specified in every project, Mr. Neidhold
reiterated that the department doesn't address all the issues
for certain classes of projects whereas for the significant
projects they are addressed. Version L, with the language which
allows scaling the process commensurate with the complexity of
the project, would change nothing short of any litigation
regarding how effectively the department administered the
process. The department's concern with HB 327 is in regard to
the exposure to litigation because of the prescriptive list and
the removal of the department's ability to apply principles that
are appropriate for an individual project.
5:01:18 PM
CHAIR JOHANSEN surmised that this committee is in favor of the
concept of CSS, while the department is saying that it's already
doing some of the things specified in the legislation. He
related his understanding that the department's real concern is
in regard to exposure to litigation. However, this committee's
jurisdiction doesn't extend to legal matters. Therefore, he
said he hesitated to have the drafter comment. Chair Johansen
then said he would feel most comfortable requesting that HB 372
be sent to the House Judiciary Standing Committee.
5:03:06 PM
REPRESENTATIVE BUCH said that while he can understand the issues
raised by DOT&PF, those concerns have been addressed in Version
L. In fact, he opined that the legislation offers less
litigious language than the department already faces. The
reason for coming forth with this idea is because of the
existing process that has been prolonged due to litigation. By
having early involvement in the process, it removes the chances
of litigation and shortens the length of projects, he opined.
With regard to the proposal to refer HB 372 to the House
Judiciary Standing Committee, Representative Buch deferred to
the committee's experience and expertise.
5:05:25 PM
CHAIR JOHANSEN closed public testimony on HB 372.
5:05:41 PM
REPRESENTATIVE FAIRCLOUGH moved to report CSHB 372, Version 25-
LS0525\L, Kane, 3/13/08, out of committee with individual
recommendations and the accompanying fiscal notes.
REPRESENTATIVE DOOGAN objected.
5:06:04 PM
REPRESENTATIVE FAIRCLOUGH clarified that she isn't trying to
stop the process with her questions, but she noted the she
hasn't had good experience with this in the past.
Representative Fairclough informed the committee that she won't
oppose moving Version L from committee, but will recommend Do
Not Pass in the bill report. She opined that she has
experienced so much litigation, in the form of delay tactics,
along the lines of NEPA. She then related that she doesn't know
how to appropriately allow community members who see something
is wrong with the process to express that in an equitable manner
without having the cost of the project increase.
5:07:44 PM
REPRESENTATIVE DOOGAN withdrew his objection.
5:07:54 PM
There being no further objection, CSHB 372(TRA) was reported
from the House Transportation Standing Committee.
5:08:02 PM
ADJOURNMENT
There being no further business before the committee, the House
Transportation Standing Committee meeting was adjourned at 5:08
p.m.
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