Legislature(1999 - 2000)
04/15/1999 03:05 PM Senate ARR
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW
April 15, 1999
3:05 p.m.
MEMBERS PRESENT
Representative Jeanette James, Vice-chair
Senator Georgianna Lincoln
Representative Mary Kapsner
Representative John Harris
MEMBERS ABSENT
Senator Robin Taylor, Chairman
COMMITTEE CALENDAR
Proposed Airport Regulations
WITNESS REGISTER
Mr. Kurt Parkan, Deputy Commissioner
Department of Transportation and Public Facilities
3132 Channel Dr.
Juneau, AK 99801-7898
POSITION STATEMENT: Presented proposed regulations
Mr. Steve Pavish, Leasing Officer
Department of Transportation and Public Facilities
2525 Aviation Blvd.
Anchorage, AK 99519
POSITION STATEMENT: Presented proposed regulations
Mr. John Steiner, Assistant Attorney General
Department of Law
1031 W. 4th Ave. suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Commented on proposed regulations
Mr. Eddie Trimmer
PO Box 361
Willow, AK 99688
POSITION STATEMENT: Suggested changes to the proposed regulations
Ms. Kim Ross, Director
Alaska Air Carriers Association
929 E. 81st #108
Anchorage, AK 99518
POSITION STATEMENT: Offered testimony on proposed regulations
Mr. Ralph Semuels
Pen Air
6100 Boeing Ave.
Anchorage, AK 99502
POSITION STATEMENT: Offered testimony on proposed regulations
Mr. Grant Thompson
Cape Smythe Air
PO Box 549
Barrow, AK 99723
POSITION STATEMENT: Offered testimony on proposed regulations
Mr. John Eckles, President
Alaska Air Carriers Association
5701 Silverado Way #L
Anchorage, AK 99518
POSITION STATEMENT: Offered testimony on proposed regulations
Mr. Fred Charlo
Tanana Air Service
PO Box 60713
Fairbanks, AK 99706
POSITION STATEMENT: Offered testimony on proposed regulations
Mr. Tim LaPorte
Iliamna Air Taxi
PO Box 109
Iliamna, AK 99606
POSITION STATEMENT: Offered testimony on proposed regulations
Mr. Mike Morgan
Warbelows Air Ventures
3758 University Ave. S.
Fairbanks, AK 99709
POSITION STATEMENT: Offered testimony on proposed regulations
ACTION NARRATIVE
TAPE 99-02, SIDE A
Number 001
VICE-CHAIRMAN JEANETTE JAMES called the Joint Committee on
Administrative Regulation Review meeting to order at 3:05 p.m. and
announced the committee would consider new proposed regulations
from the Department of Transportation and Public Facilities
(DOT/PF).
MR. KURT PARKAN, Deputy Commissioner of the Department of
Transportation and Public Facilities (DOT/PF), directed the
committee's attention to the handout entitled Airport Regulations
Update Project: Title 17, Project Objectives. MR. PARKAN explained
he would review the handout with the help of MR. STEVE PAVISH,
leasing officer for DOT/PF.
REPRESENTATIVE JAMES said she feels the most important thing to
understand is the process by which these regulations have come
about and the process by which the final form will be adopted. She
expressed concern with the speed of the process.
MR. PARKAN said the handout explains the objectives of the proposed
regulations, reviews the history of the project, and points out the
ambiguities and obsolescence of the current airport regulations.
The handout compares existing and proposed regulations, explains
the reasons DOT/PF took a comprehensive approach to new regulations
and why negotiated rule-making was not pursued, and gives examples
of regulations that have been substantially changed in response to
public comment. MR. PARKAN said though the original proposed
regulations had a fiscal note attached, the new proposed
regulations should generate income.
REPRESENTATIVE JAMES asked if program receipts are expected and
have been calculated into the budget for Fiscal Year 1999 (FY '99)
and FY 2000.
Number 140
MR. STEVE PAVISH explained there are four major objectives that
DOT/PF sought to accomplish with new regulations: to replace
obsolete regulations, to adopt new regulations necessary to comply
with Federal Aviation Administration (FAA) requirements, to
implement a new statute (HB 543), and to address aircraft parking
problems.
MR. PAVISH said this project dates back to 1994; five different
versions of regulations were modified from the previous in response
to public input and advice from the Department of Law. MR. PAVISH
noted this section of the packet includes statistics on the number
of hearings held and the amount of public comment.
Number 177
SENATOR LINCOLN asked where the 30 public hearings were held. MR.
PAVISH replied, "Everywhere." He listed Anchorage, Bethel,
Dillingham, Fairbanks, Juneau, Kotzebue, Nome and Sitka. SENATOR
LINCOLN noted no hearings were held in Aniak or McGrath. MR. PAVISH
replied hearings were held in major centers of rural Alaska.
SENATOR LINCOLN asked about the notices mailed informing tenants of
these hearings. MR. PAVISH replied DOT/PF mailed notices to all
tenants and users: tie down renters, commercial carriers,
communities and city governments. He said a typical mailing would
have gone out to 3,500 people.
Number 224
SENATOR LINCOLN said she has read all 113 pages of information
provided by the Department and she is concerned that the recent
public comment workshops did not begin until after Easter and were
not made a part of the record. She asked if all the comments made
since the beginning of the process were included in the record or
if people had to comment more than once for their ideas to count.
MR. PAVISH responded that before the most recent public comment
period, all the public comment ran together. Now, the Department of
Law has advised that too much time has passed and this new proposal
must be considered a new project, not a continuation of the
original project. He said this separation was also necessary to
ensure public comments addressed the newest proposed regulations
rather than older drafts.
Number 285
REPRESENTATIVE JAMES asked if DOT/PF would provide the committee
with an example of a typical public hearing notice mailing. MR.
PAVISH assured the committee he would send one to them.
REPRESENTATIVE JAMES asked MR. PAVISH if this packet of information
was just put together. He said some of the information dates to
April 2, but most of it has been compiled in the past few days.
REPRESENTATIVE JAMES remarked, "It's overwhelming."
Number 309
REPRESENTATIVE KAPSNER asked how it could be possible for them to
tackle this volume of information. She further wondered what it
might be like for rural Alaskans and the general public to attempt
to interpret this information. She asked if a brief condensation of
the information had been made available. MR. PAVISH replied no
summary had been done; "The devil is in the details, so, you have
to show people everything you are doing."
REPRESENTATIVE KAPSNER expressed concern that rural Alaska is very
different than any other part of the world. She asked how many
people at DOT/PF are sensitive to, and knowledgeable about, the
dynamics of rural communities. MR. PAVISH said a team of twenty
experienced people worked on this proposal. MR. PARKAN added that
all DOT/PF leasing officers have been out to the lease sites in the
communities.
Number 348
MR. PAVISH continued to explain the handout and reported that there
is "very little in the existing regulations that doesn't need
clarification, updating, amplification or repeal; most of the
regulations are very old." He gave examples of outdated regulations
regarding airport fueling regulations that conflict with the state
fire code and business activity regulations that are so broad they
are nearly impossible to enforce.
REPRESENTATIVE JAMES asked MR. PAVISH what DOT/PF has done to fix
these problems. MR. PAVISH explained they have been dealt with
effectively with the new regulations. He suggested members look at
the comparison of old and new regulations in the handout.
MR. PAVISH emphasized that no one is sure of the rules under the
current regulations. He said the Department of Law made it clear to
DOT/PF that rules the public have to follow must be made in
regulation, not by ad hoc policy.
Number 400
REPRESENTATIVE KAPSNER asked how much discretion the proposed
regulations allow as compared to the old regulations. MR. PAVISH
replied the amount of discretion has been limited. MR. PARKAN added
the regulations clearly allow discretion, but a concern expressed
by the public was that current regulations allow too much
discretion. He said some situations merit discretion for airport
managers and that has been included.
REPRESENTATIVE KAPSNER recalled a conversation from the first ARR
meeting in which it was said that sometimes discretion is abused
harshly and leads to liability for the state. MR. PAVISH said the
discretion left in the proposed regulations has been confined and
identified, "It's not a whole universe of discretion, it's
limited", he said.
MR. PAVISH gave another example of existing regulations relating to
weapons which conflict with current statute. He said currently
DOT/PF is compelled to enforce FAA security requirements with no
regulations and it is very confusing. REPRESENTATIVE JAMES said one
of the issues with the concealed carry legislation was that bush
pilots must carry a gun (which they do), but they do so in
violation of state law. She asked how the proposed regulations
addressed that situation. MR. PAVISH said they have let the law
supersede regulations, except in two specific situations. MR.
PARKAN added that the existing regulations are so broad, they
sought to narrow them and limit the discretion allowed.
REPRESENTATIVE JAMES agreed with REPRESENTATIVE KAPSNER that rural
Alaska is totally unique and the restrictions that apply generally
to most areas may not be needed in others. She said past
regulations have allowed the Commissioner of DOT/PF discretion
without any guidelines.
REPRESENTATIVE JAMES acknowledged it is a difficult task to write
regulations to cover all the varied areas of Alaska. She said
regulations like this need "room for movement and room for
reasonableness . . . I'm waiting to see if this does that." MR.
PARKAN agreed.
Number 485
SENATOR LINCOLN stated she believes there should be three types of
regulations: urban, rural and bush. She hopes that urban
regulations will apply only to urban areas. MR. PARKAN said the
Department tried to address both similarities and differences of
urban and rural Alaska and tried to avoid "treating people
differently just for the sake of being different."
MR. PAVISH indicated that some of the proposed regulations will
only apply if and when the Commissioner makes a determination they
are needed.
REPRESENTATIVE KAPSNER stated she does not want disparity in how
people are treated. She has heard from some pilots who feel picked
on by airport bureaucrats, and she hopes for consistency in
regulations. MR. PARKAN said inconsistency is the problem with the
current regulations and the Department hopes to improve things with
the new system.
Number 517
MR. PAVISH moved on to his next point: airport regulations are so
interrelated that comprehensive change is the best way to proceed.
REPRESENTATIVE JAMES remarked that perhaps changes could be
categorized into "smaller bites."
MR. PAVISH moved on to describe progress and change made in
response to public comment on the proposed regulations since 1994.
He showed how an initial proposal has changed several times over
the course of several public comment and revision periods.
REPRESENTATIVE JAMES asked about the section that reads "except as
otherwise provided by this section or as authorized by the
Department." She asked if the authorization would be in writing.
MR. PAVISH replied it would be.
MR. PAVISH concluded his comments by emphasizing the fact that
airports are complex facilities used by people with different and
often conflicting interests; they need rules. Also, he said these
proposed regulations are the most liberal regulations in the U.S.
They offer the most detail and less airport operator discretion
than is typical of public and community operated airports. MR.
PAVISH said, "They are good. They're good because we've had a lot
of input from the public. The state airport system and airport
users would be much better off with new regulations than living
with the existing ones."
TAPE 99-02, Side B
Number 592
REPRESENTATIVE JAMES said Alaska is different because many parts of
the state cannot be reached without airplanes, that is why the
State must be more lenient with regulations.
REPRESENTATIVE JAMES mentioned Administrative Order 157 (A.O. 157),
issued by Governor Knowles June 5, 1995. She said this order
implemented some of her ideas about revising the regulation making
process. She asked if the Department had considered minimizing the
cost of the proposed regulations to the public as is directed in
A.O. 157. She remarked she knows this is a revenue generating
project. MR. PAVISH replied that the new regulations contain
revenue generating provisions that are expected to produce six to
seven hundred thousand dollars annually.
MR. PAVISH said the issue of cost was raised at each phase of the
public comment period. These regulations are not cost-free but they
"cover those blank spots in existing regulations." Generally,
these regulations do not institute a lot of changes, they merely
clear up the existing policy and spell out the rules more clearly.
Number 535
REPRESENTATIVE JAMES asked at what point the regulation process is
now and what the deadline will be for public comment on the
proposed changes. MR. PAVISH replied the deadline is April 23.
REPRESENTATIVE JAMES asked if the comments need to be in writing.
MR. PARKAN believed the Department could consider comments made at
this public hearing. MR. STEINER interjected that if the hearing
was recorded and transcribed and the record was submitted, the
Department could consider the comments as part of the record.
Number 509
REPRESENTATIVE JAMES asked where the Department gets its authority
to require testimony be submitted in writing. MR. STEINER
responded that the Department is required to keep a record of
testimony and though the statute allows both written and oral
comments, taking oral comments is not required.
REPRESENTATIVE JAMES asked if legislative comments also need to be
in writing. MR. STEINER said he is not aware of any distinction
between legislative comments and comments from the general public.
REPRESENTATIVE JAMES said she would look into the statutory
authority of the Administrative Regulation Review Committee(ARRC).
She explained the committee generally reviews proposed regulations
and regulations that are problematic. She said the committee would
like to communicate and work with the agencies, as this may defuse
some of the animosity between the Departments and the Legislature.
MR. STEINER noted that the Department is at all times free to
consider the committee's remarks regarding the regulation process.
The limitation he mentioned refers only to specific comments on the
proposed regulations. REPRESENTATIVE JAMES noted that timing is
critical, as there is such a short period before the deadline, and
legislators are in the middle of the budget process. She said this
is overwhelming for legislators.
Number 461
SENATOR LINCOLN stated her concern with the process is that the
public has one month to read volumes of regulations and information
contained within this proposal. "I think that's unreasonable . . .
the Department sat on it for 8 months . . .that's the problem I've
got with the process."
MR. EDDIE TRIMMER, testifying from Mat-Su, alleged that even with
all the people given notice of the proposed regulations, not all
affected parties are informed. MR. TRIMMER said that the use of
discretion on the part of airport managers leads to discrimination
in the application of that discretion. He said the proposed
regulations will affect every person who flies in Alaska and the
restrictions contained within them are devastating.
MR. TRIMMER claimed inefficiency in the Department caused months of
delay in releasing the proposed regulations and now the public has
only one month to respond.
MR. TRIMMER opposed the proposed regulations, saying the draft is
wordy, lengthy, confusing and overly discretionary. It makes too
many changes to the current regulations and MR. TRIMMER blamed the
failure of the proposal on inefficiency and over staffing within
DOT/PF.
Number 330
MS. KIM ROSS, Director of the Alaska Air Carriers Association, said
she has waged an 11-year battle with DOT/PF over leasing
requirements. She expressed frustration with the time period
allotted for public comment and said the Department of Law took 8
months to make substantial changes to the earlier draft of the
proposed regulations that the air carriers had reviewed. Now, air
carriers have less than six weeks to comment on them.
MS. ROSS said the Air Carriers Association worked with the
Department during their workshop process, but the fact that this
was not on the record was considered a "slap in the face" to the
industry. She mentioned that, at this point, the ten years of
previous public comment had all been thrown out.
MS. ROSS reported that she and Mr. Kip Knudsen reviewed the
proposed regulations line by line and she feels as if they are some
of the few users that actually understand what is contained in that
226 page document. She noted that Administrative Order 157 called
for the use of plain language and an attempt to make regulations
more accessible to the general public. She alleged this "mind-
boggling" document does not comply.
MS. ROSS stated air carriers are too busy organizing the summer
season to try and respond to this document. Even Alaska Airlines
said they need at least an additional 90 day extension to reply to
DOT/PF regarding these proposed regulations.
Number 250
MS. ROSS gave credit to DOT/PF for the improvements they made, but
pointed out there is still an underlying problem with the lack of
definition of the phrase "State's best interest." She said the
proposed regulations still give too much discretion to airport
managers and the Commissioner of DOT/PF. The State still has too
much authority to refuse to issue leases, renewals and extensions
"at a whim."
MS. ROSS said she initially thought these proposed regulations were
an improvement, but feels they still do not give enough
consideration to the airport tenants. The breadth of discretion
allowed does not ensure fair lease terms and fees. She quoted AS
02.15.090(a) in calling for "rates and fees that are reasonable and
uniform for the same class of privilege or service."
Number 181
MS. ROSS concluded the State of Alaska is unique and should not be
compelled to operate airports like in the Lower 48. Since the State
owns the airports, air carriers have no other option. Also, due to
existing statute, they can't even build their own airports and
"have no place else to go." She assured the committees the air
carriers want a "partnering" relationship with the State and are
willing to work with DOT/PF on this issue.
Number 147
MR. SEMUELS, Operations Manager from PenAir, thanked DOT/PF for
their work on the proposed regulations and stated he needed an
additional 90 days to review them. MR. SEMUELS detailed his
specific problems with the proposed regulations. First, allowing
discretion to airport managers results in different "operational
details." This requires site specific training for every new
employee. PenAir wants to train all its employees to do things
safely, the same way every time.
MR. SEMUELS agreed with Ms. Ross that the definition of the State's
best interest is too vague. He gave several conflicting ideas of
what might be considered the State's best interest, and said he
would like to see more definition added to that phrase.
REPRESENTATIVE JAMES agreed this is a difficult area to sort out.
SENATOR LINCOLN asked Mr. Semuels if he would find it difficult to
live under the current regulations if the comment period on the new
proposed regulations was extended. MR. SEMUELS said he would look
forward to that.
MR. GRANT THOMPSON, representing Cape Smythe Air Service, raised
the question of leases. He asked if the new regulations are adopted
that would mean all new leases. He also shared the concerns
expressed about the definition of the State's best interest.
TAPE 99-03, Side A
Number 001
MR. PARKAN said an old lease would be honored until a new lease was
entered into.
MR. JOHN ECKLES, President of the Alaska Air Carriers Association,
agreed with the comments made by Ms. Ross and Mr. Semuels. He said
the air carriers are the tenants that will be affected by the
regulations. He expressed his concern with the speed of the process
and the discretion the State has reserved within the regulations.
SENATOR LINCOLN asked how much time he would need to adequately
review the proposal, and he replied "a minimum of five months."
Number 046
MR. FRED CIARLO, representing Tanana Air Service, reiterated that
the public comment period is very short and the best interest of
the State is vaguely defined. He added that the length of the
appeal process is unreasonable and gives him the feeling the
Department is saying "take it or leave it"; he thinks DOT/PF needs
to work together with business on this.
MR. TIM LAPORTE, from Iliamna Air Taxi, wanted to know if they
would get the same lease back. He said it is difficult for business
owners to invest in property without some certainty of retaining
their lease. MR. PARKAN said that is a concern under the old
regulations, but DOT/PF would be able to address MR. LAPORTE'S
situation under the new regulations.
Number 116
MR. MIKE MORGAN, from Warbelow Air Service in Fairbanks, agreed
with previous testimony and added that the lack of assurance in the
continuity of a lease can cause a businessperson not to invest in
new facilities. He also asked why the negotiated rule-making
process was not used in this case. He suggested, "Maybe we should
go back to the drawing board, start from scratch and do it right."
REPRESENTATIVE KAPSNER asked the Department what their time line
for making a decision would be after hearing the testimony. MR.
PARKAN said as things stand, the deadline for comments will be the
23rd of April. MR. PAVISH said DOT/PF would then consider all the
comments, accept or reject individual comments, revise the
regulations where applicable, and then turn the results over to the
Commissioner for adoption and a review by the Department of Law.
Then, if all went as could be expected, the new regulations would
be effective around October 1, 1999.
Number 165
REPRESENTATIVE JAMES commented that once the deadline has passed,
there will be a "blind section" of time, in which there will be no
word from the Department about the substance of the regulations and
changes that may or may not have been made.
REPRESENTATIVE KAPSNER asked if DOT/PF waited five months, it would
be a matter of five months delay. MR. PARKAN agreed this is
correct. He said, "We're hoping for some finality to these. It has
been years . . . this is not new, clearly it is the latest draft,
it is substantially similar to what has been worked on before. At
some point you have to draw the line.
REPRESENTATIVE JAMES said in her opinion, 30 days, at this point in
time, is not enough. MR. PARKAN said, "It's been tough any time of
the year we've tried to do this. . .."
Number 220
SENATOR LINCOLN echoed REPRESENTATIVE JAMES'S statement that time
is critical to this issue. She repeated that the Governor's
Administrative Order 157 set out a goal of clear language, a better
relationship with the public, a more accessible regulations process
with minimized costs and public and industry cooperation. She
pointed to the letter from Commissioner Perkins, the fact that all
the workshops were held in Anchorage, the one day only call in line
for oral comments, and the fact that the Department disregarded
years of prior comments made on these regulations as they were
being developed, and concluded that this process has not been
consistent with the directives of Administrative Order 157.
SENATOR LINCOLN asked if DOT/PF cannot extend this comment period.
Number 308
SENATOR LINCOLN stated her intent to have the committee send a
letter strongly urging DOT/PF to extend the comment period. She
asked MR. PARKAN what the agency would have to do in order to
extend the comment period. MR. PARKAN said they would have to send
out a written notice that would cost $5,000.
Number 341
REPRESENTATIVE JAMES stated she has not had time to review the
proposed regulations. She said the next meeting on this issue is
scheduled at 3:00 p.m. on Thursday.
MR. STEINER said the Department of Law strongly endorses public
comments in the regulations process. The Department of
Transportation is now operating with certain statutory changes and
no regulations to provide the mechanism for carrying them out. The
result has not allowed the Department to process certain
applications. They have promulgated interim policies, but the
precise legal status is somewhat in limbo were it to ever be
challenged in court. Because of those factors, he said
consideration should be given to establishing regulations that
could be modified later.
REPRESENTATIVE JAMES responded that her experience with regulations
is that they are designed to be a time consuming exercise and
amending them is the same process as writing them.
MR. STEINER said there is one slight distinction with existing
regulations. Because there are only a few that cover broad areas
and more with specific application, it is very difficult to do
piece meal changes. Once regulations are adopted, it is much
easier to make smaller changes.
Number 387
SENATOR LINCOLN moved to extend the public comment period from
April 23 to September 23 on the proposed airport regulations,
including both the rural airport regulations and the Anchorage and
Fairbanks International Airport Regulations.
REPRESENTATIVE JAMES noted as an Administrative Review Committee,
they couldn't extend the time, but they could request an extended
time. There were no objections and the motion was approved.
REPRESENTATIVE JAMES said that Mr. LaPorte, Iliamna Air Taxi,
wanted to get an extension on his lease and asked if that would
have been possible under the old policy.
MR. PAVISH said the problem is the imposition of HB 543. Before HB
543, the existing regulations were fine, although narrow. HB 543
passed in 1996 and caused conflicts between statute and existing
regulations. There is an interim policy that tries to fix this
situation, and Mr. Steiner thought Mr. LaPorte's problem could be
resolved if they could talk.
REPRESENTATIVE JAMES urged him to do that and added that it seemed
like a statute would override regulations. She failed to
understand why a statute couldn't be implemented before the
regulations were written.
MR. PAVISH commented that HB 543 is a very brief statute with very
broad application and even the issue of the State's best interest
is a much bigger question.
REPRESENTATIVE JAMES said she thought the Legislature should use
clear language in statutes so that their intent is clear. She then
adjourned the meeting at 5:12 p.m.
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