Legislature(1999 - 2000)
03/24/1999 06:09 PM Senate FIN
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
March 24, 1999
6:07 PM
TAPES
SFC-99 # 63, Side A and B
64, Side A and B
CALL TO ORDER
Co-Chair John Torgerson convened the meeting at
approximately 6:07 PM
PRESENT
Senator John Torgerson, Senator Sean Parnell, Senator Randy
Phillips, Senator Dave Donley, Senator Gary Wilken, Senator
Al Adams, Senator Pete Kelly, Senator Lyda Green and
Senator Loren Leman
Also Attending:
DEBORAH BEHR, Assistant Attorney General, Legislation and
Regulations Section, Civil Division, Department of Law; JON
SHIVELY, Commissioner, Department of Natural Resources;
CAROL CARROLL, Director, Division of Support Services,
Department of Military and Veterans and Department of
Natural Resources; NICO BUS, Administrative Services
Manager, Division of Support Services, Department of
Military and Veterans Affairs and Department of Natural
Resources;
Attending via Teleconference: From Anchorage: JIM BUTCHART,
Division of Emergency Services, Department of Military and
Veterans Affairs; MARY GILSON, Assistant Attorney General,
Governmental Affairs Section, Civil Division, Department of
Law; BOB LOEFFLER, Director, Division of Mining, Department
of Natural Resources.
SUMMARY INFORMATION
SB 101-DEFINITION OF DISASTER
SB 24-REGULATIONS: ADOPTION & JUDICIAL REVIEW
SB 33-TASK FORCE ON PRIVATIZATION
Back to order from morning recess.
SENATE BILL NO. 101
"An Act amending the definition of 'disaster.'"
This was the fourth hearing for this bill. Co-Chair John
Torgerson noted that during the last hearing, the committee
adopted CS Version "I" as a Workdraft.
Senator Sean Parnell moved for adoption of Amendment #5.
Co-Chair John Torgerson explained that it added an intent
section to the bill to alleviate fear that the committee
would change the way the Governor could receive federal
funds. He stated that the bill did not do that, but the
intent language was proposed to clarify the matter.
Without objection, Amendment #5 was adopted.
Senator Al Adams moved for adoption of Amendment #6. Co-
Chair John Torgerson objected. Senator Al Adams explained
the amendment would add the words, "an event including" to
page 4 line 8. The reason for this addition was to ensure
that FEMA funds would not be lost. Co-Chair John Torgerson
spoke to objection, saying that there could be other
interpretations to the language to suggest the disasters
would not be limited to the list, but that others could be
included.
Amendment #6 failed to be adopted by a vote of 2-7. Senator
Al Adams and Senator Pete Kelly cast the yea votes.
There was discussion by the committee to clarify the status
of the CS, past actions taken and the amendments proposed.
Break 6:15 PM / 6:22 PM
Senator Dave Donley moved for adoption of Amendment #7.
Senator Al Adams objected. Senator Dave Donley explained
that the amendment was mostly conforming language to make
Section 2 work. It would give the Legislature an option not
to convene a special session if the expenditure was over $5
million. It set up a method for the presiding officers to
poll the members of the Legislature and receive written
consent by the majority of the members of each body. It
would make the provision of polling of Legislatures
acceptable using telephonic facsimile, electronic mail or
other means of written communication. Co-Chair John
Torgerson referred to page 1 section 1 and noted the
language stating that the proclamation of disaster could
not last longer than 30 days unless extended by the
Legislature by law. He wondered if there shouldn't be a
conforming amendment to that provision also to possible
allow for the extension to be made other than with a law or
concurrent resolution. Senator Dave Donley countered that
the existing law said a disaster could not last longer than
30 days without concurrent resolution. Therefore, the same
problem existed under current law. Co-Chair John Torgerson
responded that the current law intended that the
Legislature would convene a special session and pass a law
for the extension. Senator Dave Donley said the distinction
between law and a concurrent resolution wouldn't be
impacted by this because, unless it was determined that the
current system was flawed and the special session law had
been ignored, the CS would become consistent even thought
it was inconsistent in current law. With the adoption of
Amendment #7 there was a possibility it could become
inconsistent again. Co-Chair John Torgerson said the bill
drafters would be directed to ensure conformity.
Senator Al Adams referred to page 2 line 1 of the Amendment
explained that if that was done, funding could be approved
for a disaster of over $1 million or, $5 million if the
federal government declared it. It would also give the
option to handle the funding through the legislative
process. He asked the sponsor to comment. Senator Dave
Donley said that would change the framework of the CS.
Senator Al Adams said it would make it simpler to get
access to the federal funds and to also implement Senator
Dave Donley's polling method. Senator Dave Donley said the
CS was intended to bring more accountability into the
system. By inserting the "or" the Governor would be free
to spend money without consulting the Legislature as long
as the federal government declared the disaster. Senator Al
Adams countered that the legislation shouldn't be made so
tight that when there was a disaster, the state would be
unable to respond. Senator Al Adams conceded that if the
sponsor did not agree with the proposed amendment to
Amendment #7, he would not offer it. Senator Dave Donley
thanked him and declined the amendment.
Without objection, Amendment #7 was adopted.
Amendment #8 was brought before the committee. Co-Chair
John Torgerson noted that page 2 lines 6-15 of the CS was
deleted by Amendment #7 thus affecting the proposed changes
in Amendment #8 to page 2 line 9 of the CS.
ANNETTE KREITZER, staff to Senator Loren Leman, spoke to
Amendment #8. She testified that no changes from Amendment
Amendment #8. She told the committee that proposed
deletions of, "26.23.300(c) and (d)" and insert of,
"26.23.300(b) and (c)" in Amendment #9 was simply a
function of what would happen on page 2 lines 22-26 of the
CS.
She quantified that this amendment was drafted as a result
of committee discussions about how to go through the
process. This would remove the $500,000 limit and provide
specific expenditures of up to $1 million from the disaster
relief fund. The qualifications would be, "to save lives,
protect property and public health and safety or lessen or
avert the threat of a disaster that posed a direct and
imminent threat of sufficient severity and magnitude to
justify state action." This language was taken from FEMA's
definition of emergency.
The next significant change was to page 3 line 7 of the CS,
the limiting section of specific types of disasters
allowable. It added "mitigate environmental damage" to the
release of oil or hazardous substances.
The next proposed change was to reduce the spending cap
from $5 million to $3 million on page 3 line 8. She
indicated that was a policy call for the committee to
decide what figure it chose to use.
Co-Chair John Torgerson interrupted asking that the
amendment be divided. There was discussion as to where the
division would occur.
Co-Chair John Torgerson asked for clarification that the
first portion of the amendment would delete the half
million-dollar provision for smaller disasters and increase
it to $1 million. Annette Kreitzer affirmed explaining
that the reason for that change related to the definition
of disaster and the committee's action to separate out
certain disasters on page 3 lines 4-9 for specific
treatment by the Legislature. Co-Chair John Torgerson
noted that the $500,000 trigger was liberal and the
definition was very broad so that it could encompass the
smaller disasters. It had seemed an appropriate amount of
money to fund the smaller events and this change would
raise that amount and tighten the definition.
Annette Kreitzer said that was correct and that it was a
policy call for the committee. She noted the various
discussions relating to the bill. Co-Chair John Torgerson
asked if the $500,000 was in existing language. Annette
Kreitzer answered that the $1 million limit was the
existing language. Co-Chair John Torgerson thought the
$500,000 limit was also in current statute.
Co-Chair John Torgerson entertained a motion to divide the
question.
Senator Loren Leman moved for adoption of Amendment #8A.
This consisted of all of page 1 and page 2 lines 1-10
excluding lines 3-5 of Amendment #8.
Annette Kreitzer recommended including page 3 lines 21 and
22 of Amendment #8 noting that it was parallel language.
Senator Loren Leman amended his motion to include that in
Amendment #8A.
Senator Al Adams said it was difficult to understand the
amendment because it set different flooring levels relating
to the $500,000 and $1 million limits. It also was
difficult to understand what authority the governor would
have at different flooring levels. He suggested a change
of the word "possesses" to "poses". He then spoke to the
concerns of only allowing relief for one flood per
community. What would happen if there was a second flood
and the state wanted to save lives and protect property and
health? He then noted that the cost of most disasters was
above $3 million for Alaska and he felt the $5 million
limit should not be lowered. He complained about the
definitions of the disasters asking why the list did not
include disasters more likely to occur in Alaska. He would
vote no on the amendment.
Senator Lyda Green discussed the definition of disaster.
She referred to current statute and its reference it made
to US code. The definition included in the current
amendment was nearly identical to the current statute.
Therefore, this amendment would not depart from the
definition, it just hadn't been followed in the past.
Senator Al Adams rebutted that if that were the case, he
would ask where was the definition of severe winter storms
in the amended definition.
Senator Sean Parnell read the amendment differently. As he
understood, it would allow the Governor, without additional
Legislative authorization, to expend funds for the purposes
of saving lives, protecting property, etc. All this
amendment would do was bring to light the immediacy of the
impact to the people affected and give the Governor the
ability to fund those disasters. It did not set dollar
limits. Senator Loren Leman said Senator Sean Parnell was
correct.
Senator Loren Leman made technical amendment to the amended
Amendment #8A to change "possesses" to "poses" on page 1
line 12 and page 2 line 8.
Senator Al Adams still questioned what would happen in the
case of a second flood. Was it the intent of the sponsor to
prevent the state and federal government from assisting in
the protection of lives and property. Co-Chair John
Torgerson informed him there was another amendment that
addressed the flood provision. It was not his intent to not
allow assistance. He noted the two triggers of $5 million
for the first flood and $1 million for the next flood. He
detailed the provision.
Co-Chair John Torgerson asked Annette to read the language
with the amended Amendment #8A incorporated. She read into
the record portions of the CS Version "I" as it would be
amended.
Senator Sean Parnell asked why, as a policy matter, did the
committee want to get rid of the $500,000 provision.
Annette subsection b the 500,000 . Annette Kreitzer
responded that this amendment was drafted in the initial
stages of the bill to reflect the feelings of the committee
at that time. She realized that the feelings might have
changed. Senator Sean Parnell liked the language but
questioned the deletion of the $500,000. Co-Chair John
Torgerson agreed saying it essentially raised the amount
that the governor could expend and that it had worked fine
in the past.
Senator Sean Parnell asked if an amendment to delete page 1
lines 4 and 5 of Amendment #8 would affect the provisions
on page 2 starting with line 22 of the CS Version "I".
Annette Kreitzer suggested a conceptional amendment to
direct the Division of Legal Services to conform the
language to include the saving lives and property provision
and retain the $500,000 provision. She gave detail.
Senator Sean Parnell moved to conceptually amend the
amended Amendment #8A. This would delete page 1 lines 4 and
5 of Amendment #8, and essentially retain the language on
page 2 lines 22-26 of the CS Version "I" and leave the
$500,000 trigger in the bill.
Senator Al Adams asked if that would affect the change to
renumber AS 26.23.300 as proposed on page 1 lines 1-3 of
Amendment #8 and also addressed in Amendment #7. Annette
commented that she saw it as a technical amendment to
conform to the bill. Senator Sean Parnell stated his intent
to have the bill drafters incorporate the necessary
technical changes. The intent of his motion was to retain
the language regarding the $500,000 provision.
Without objection, the amended Amendment #8A was again
amended.
Senator Lyda Green moved to conceptually amend Amendment
delete all of lines 24-26 of the CS Version "I" and be
replaced with the language from page 1 lines 11-13 of
Amendment #8. She read the proposed language into the
record.
Senator Sean Parnell questioned why the committee would do
that with the $500,000 trigger when it was included with
the $1 million trigger. He noted Senator Al Adams's point
that there were other smaller events that the state may
want to respond to. Senator Lyda Green responded that when
declaring disasters, the standard must be consistent or
there would be a risk of starting to assist in a disaster
and the cost running above the $500,000.
Senator Dave Donley understood this, if there was a small
disaster and the cost rose above the $500,000 it would be
pushed into the higher category and the additional
restrains would be imposed. Senator Lyda Green commented.
Tape: SFC - 99 #63, Side B 7:03 PM
Co-Chair John Torgerson asked if the language should be
inserted were intended by Amendment #8 rather than as
proposed in the amendment to the amended Amendment #8A.
Senator Dave Donley said that while there was a good
argument for accountability, there was an outweighed
argument for flexibility when the cost was below $500,000.
By allowing that flexibility, the Legislature did not give
up the greater accountability for the larger disasters.
Senator Lyda Green asked for clarification of the
restrictions between the $500,000 and $1 million dollar
expenditures. There was discussion on the subsections
affected.
Co-Chair John Torgerson restated the amendment into the
record. Senator Randy Phillips objected to the motion.
Senator Loren Leman felt the committee should roll back and
start over. He thought the committee had gotten off track
with this amendment.
Senator Lyda Green withdrew her motion to amend the amended
Amendment #8A.
Co-Chair John Torgerson noted that brought the committee
back to Amendment #8A as amended. Senator Al Adams
maintained his objection. He restated his earlier comments
that the amendment was difficult to understand and the
delegation of powers was also difficult to ascertain. He
noted that this bill could not be amended to adequately
satisfy all the member of the committee.
Amendment #8A as amended was adopted by a vote of 8-1.
Senator Al Adams cast the nay vote.
Senator Loren Leman stated that he would not offer
Amendment #8B. This consisted of page 2 lines 3-5 and lines
11-25 of Amendment #8.
Senator Loren Leman moved for adoption of Amendment #8C.
This consisted of page 3 lines 1-20 and the deletion of
page 2 lines 3-5 and lines 11-25 of Amendment #8. Senator
Lyda Green objected. Annette Kreitzer explained that the
portion remaining (page 3 lines 1-20) spoke to the
definition of disaster. This amendment would change the
definition to make it similar to the FEMA definition of
major disaster. She read the definition into the record.
She added that she had checked with the National Weather
Service to see how they defined prolonged cold
temperatures. She learned that they defined a short period
of cold a "cold snap" and a longer period of cold a "cold
spell". The term, "prolonged extreme cold" came from the
FEMA's reference to prolonged extreme heat.
Co-Chair John Torgerson asked for clarification of the
intent of the amendment. Annette Kreitzer responded that
it was difficult for her to understand and that she was
only able to determine the new language rather than what
was deleted. She continued to detail the amendment. Co-
Chair John Torgerson noted that it would actually delete
the language down through line 8 of page 3 of the CS and
replace the entire definition.
Senator Gary Wilken asked for the rationale behind the
elimination of "or clothing". Annette said clothing was
considered property and was not listed separately under
FEMA language.
Co-Chair John Torgerson pointed out that the new definition
would also eliminate avalanche. Annette responded that it
was the intent of the amendment to stay within the FEMA
language. However, she said the severe extreme cold
provision was added and the committee could chose to add a
provision for avalanche also.
Senator Loren Leman moved to amend Amendment #8C to insert
"avalanche" to page 3 line 12 after "mudslide" in Amendment
Senator Lyda Green asked if other parts of the statute
referred to the US code that defined natural disaster. She
read the definition into the record. She felt the statute
had to either conform to the federal code or eliminate any
reference to it. Co-Chair John Torgerson said he would
entertain an amendment to do so.
Senator Al Adams asked if the statute reflected the US
code, would that make it easier to get federal funding.
Senator Dave Donley didn't think so.
Senator Al Adams wanted to know what events might happen in
Alaska that was not included in the definition. He had
concerns about the elimination of potential events that
might happen in the future. Co-Chair John Torgerson
explained that the Governor could still spend up to
$500,000 on them. If the Governor chose to declare the
event a disaster, he could spend up to $1 million. Any
amount more than that would then trigger the legislative
special session component.
Senator Lyda Green felt it should be called a "major"
disaster.
Break 7:24 PM / 7:40 PM
Senator Lyda Green moved to amend Amendment #8C as amended.
This would delete language on page 3 of the CS beginning
with "resulting" on line 4 and ending with "damage," on
line 7 and replace with different language, which she read
into the record. Co-Chair John Torgerson offered a
friendly amendment to the amendment to replace the language
to be inserted with, "as defined in AS 26.23.900(2)".
Senator Lyda Green accepted the friendly amendment.
Co-Chair John Torgerson noted that this amendment would
remove from the list of allowable disasters, epidemic,
explosion and riot. If this was the will of the committee,
he felt it should be noted in the record. Senator Lyda
Green stated that was her intent.
Without objection, the amendment to amend Amendment #8C as
amended was adopted.
Without objection, Amendment #8C as amended was adopted.
Senator Randy Phillips moved for adoption of Amendment #9.
Senator Al Adams asked how it compared to the changes made
with Amendment #8. Co-Chair John Torgerson explained that
this amendment would change the provisions regarding floods
to pay $5 million once. If costs exceeded $5 million, the
Legislature must approve expenditures using the polling
method. If a second flood occurred in the same geographical
area, the maximum amount allowed would be $1 million
without Legislative approval.
Senator Al Adams removed his objection. Without objection,
Amendment #9 was adopted.
JOHN SHIVELY, Commissioner, Department of Natural Resources
testified. He said his office delivered a letter to the
Senate Finance Committee that outlined the department's
concerns about the affect of the bill, which he didn't
think the committee intended. However, because of the
funding procedure, he thought there would be consequences
to the wildlife fire fighting services. In the past, the
program was funded from the disaster funds with the
department coming to the Legislature the next session with
a supplemental request to replenish the fund. Under this
bill, it would be necessary to declare a disaster and to
request additional funds from the Legislature before they
could be expended. Fire fighting costs over the last
several years averaged over $11 million. Because the new
bill set a $5 million limit, a special session would need
to be called each fire season.
He suggested a couple solutions. One was to pre-fund the
fire fighting program. He felt that could be problematic
for a number of reasons. Another solution would be for the
Legislature to exempt some wild land fire fighting. That
would allow the status quo by having the Legislative
leadership approve the funds as needed. Another solution
was to incorporate the polling of the Legislature to
convene a special session.
Co-Chair John Torgerson asked what was the current limit
for spending on wildfires. Jon Shively responded that the
initial limit was whatever the Legislature appropriated.
Last year that amount was $3.5 million. When more was
expended, the department requested money from the disaster
relief fund. That fund usually was not sufficient, and a
request was made to the Governor. The Governor then
notified the Legislative leadership for approval for more
funds to continue to fight the fires. He stressed that the
costs constantly went over the initial appropriation.
There was no limit for fire fighting as such other than the
Legislative leadership deciding to refuse the request.
Co-Chair John Torgerson corrected him saying that the
Legislative leadership didn't approve additional funds,
only declining to convene a special session, thus allowing
the Governor to expend funds. Under the proposed bill, the
limit would be raised to $5 million. Jon Shively countered
that he did not interpret it that way. The spending limit
was not the problem; it was the fact that there was no
money in the fund. There was further discussion between Co-
Chair John Torgerson and Jon Shively on the matter.
Senator Al Adams asked if the Legislature would appropriate
more money to the disaster relief fund. Co-Chair John
Torgerson answered that chances were there would not be
additional funds. Senator Al Adams stated that he felt more
money should be appropriated. Co-Chair John Torgerson
understood but noted that this bill would allow the
Governor to use other funds for disasters without
legislative authority. He stressed that prior to this bill,
the Governor only had authority to expend up to $1 million.
This bill would allow him to spend up to $5 million.
Co-Chair John Torgerson noted that his office hadn't
received the aforementioned letter from the Department of
Natural Resources.
It was determined there was no one present wishing to
testify on the bill.
Co-Chair John Torgerson announced he did not intend to move
the bill from committee at this meeting. He would have a
new CS drafted for the committee to review. He ordered the
bill held in committee.
CS FOR SENATE BILL NO. 24(JUD)
"An Act relating to regulations; relating to
administrative adjudications; amending Rule 65, Alaska
Rules of Civil Procedure; and providing for an
effective date."
This was the third hearing for this bill.
Co-Chair John Torgerson noted the new CS Version "W" before
the committee did not incorporate the removal of Section 8
from CS Version "V", as amended by the committee in it's
previous hearing.
Senator Dave Donley, as sponsor of that amendment,
understood the difficulty in removing the section and had
no objection to it remaining in the bill. He moved for
adoption of CS SB 24 Version "W" as a Workdraft. Without
objection, it was adopted.
It was noted that earlier Amendments 2, 3 and 4 were
redrafted and renumbered Amendments 5, 6 and 7 to conform
to CS Version "W".
Senator Sean Parnell moved for adoption of Amendment #5.
Co-Chair John Torgerson explained the amendment a technical
recommendation from the Department of Law. It would delete
"the division of habitat and restoration of" and insert
"for habitat and restoration programs". The division was
not created by statute but by regulation. Therefore there
was no official division and this amendment would conform
the bill to law. The amendment would also delete,
"designated state entity" and insert, "designated state
agency".
Senator Randy Phillips asked for clarification that the
habitat and restoration division in the Department of Fish
and Game was not created by statute. Co-Chair John
Torgerson said it was created by Executive Order and then
regulations were adopted to operate the programs.
Amendment #5 was adopted without objection.
Senator Al Adams moved for adoption of Amendment #6.
Senator Dave Donley objected. Senator Al Adams explained
that this would limit the use of supplemental notices for
Department of Environmental Conservation regulations
relating to domestic wastewater disposal, food service
programs and the solid waste management program. He said
these regulations were most likely to affect citizens who
were unfamiliar with the regulation process and would not
benefit from the additional notices. This would be cheaper
to operate and make regulation adoption easier.
DEBORAH BEHR, Assistant Attorney General, Legislation and
Regulations Section, Civil Division, Department of Law,
came to the table at the request of Senator Al Adams. The
amendment would create a pilot project out of the programs
of the Department of Environmental Conservation. These
programs were selected because it was felt they affected
citizens who did not regularly deal with regulations and
therefore would have smaller fiscal notes.
Senator Dave Donley commented that the bill as it was
included the programs mentioned plus others from Department
of Environmental Conservation. He said that the bill was
narrowed to only include the Department of Environmental
Conservation, Department of Natural Resources, and the
Department of Fish and Game, habitat and restoration
programs. Therefore, it was already focused to the most
problematic programs.
Senator Gary Wilken asked if this amendment would narrow
the bill down further. Senator Dave Donley answered it
would. Co-Chair John Torgerson added that it would exclude
all the other programs listed in the current CS.
Amendment #6 failed to be adopted by a vote of 1-8. Senator
Al Adams cast the yea vote.
Senator Al Adams moved for adoption of Amendment #7.
Senator Dave Donley objected. Senator Al Adams spoke to the
motion.
Tape: SFC - 99 #63, Side A 8:07 PM
Senator Al Adams continued to speak saying the amendment
would reduce the number of public notices needing to be
sent. It would also make an efficient use of the Internet
and allow for a shorter turn around time for comments on
proposed regulations. It would make the process more
predictable for business and eliminate reoccurring cycles
of revisions and comment periods.
Deborah Behr commented that this amendment addressed the
most problematic sections of the bill. She explained the
process for adopting regulations required under the current
bill regarding timber sales. There was no end to the number
of times required for a proposed regulation to be sent out
for public comment. She spoke of concerns about missed
construction seasons and missed timber sales. This
amendment would reduce costs by limiting to provisions to
pilot programs.
Senator Randy Phillips asked when was the last time the
state had a timber sale. Deborah Behr did not know and
said she would have to ask Department of Natural Resources.
However, this provision would also apply to air quality
issues.
Senator Dave Donley asked what was different between this
amendment from what the departments currently did. Deborah
Behr detailed the steps of the current process. So long as
the proposed regulation fit the scope of the public notice,
the commissioner had the discretion to adopt the change
without further public comments. This amendment would
remove that discretion, but only for one round of public
comments. Senator Dave Donley responded that while this was
a step toward the original intent of the bill, it did not
go far enough. It should not be limited to one round. If a
person agreed with the first regulation proposal and chose
not to comment, he or she would then not be notified of the
next proposed change, which may be significantly different.
Senator Pete Kelly asked Deborah Behr to comment on Senator
Dave Donley's statement. She said Senator Dave Donley
raised a point. How do people who didn't comment the first
round have an opportunity to be noticed of subsequent
changes? She suggested that those interested would follow
the process on the Internet.
Amendment #7 failed to be adopted by a vote of 1-8. Senator
Al Adams cast the yea vote.
Senator Al Adams moved for adoption of Amendment #8. Co-
Chair John Torgerson objected. Senator Al Adams explained
the amendment would remove Section 4, requirement for a
cost benefit analysis for new regulations, which would be
costly.
Deborah Behr further explained the problems the
Administration had with Section 4 of the bill because of
its vagueness. It did not define the costs to benefit the
public requirement. She spoke of the difficulty to decipher
when there were competing interests to the public about a
proposed regulation such as with timber sales, saying it
would be difficult to figure what was appropriate.
Determining the cultural impact to the community into the
cost of development. There would be many court challenges
based on this point. She also referred to small business
waivers and the need to determine if there was a public
cost benefit under the requirement of the bill.
She continued saying this amendment was an expansion of
Senator Pete Kelly's suggestions for serious consideration
of costs. The Department of Law felt this solution would be
workable and would have no fiscal impact to the state.
Co-Chair John Torgerson noted he added the cost benefit
analysis to the section of the CS after a sidebar with
Senator Dave Donley. Senator Dave Donley commented that the
added language was only to a portion of the section. This
amendment would remove the entire section. He spoke to the
rest of the section. First, the Senate Judiciary Committee
had adopted many provisions to soften the effects of the
cost benefit. He detailed those provisions noting the added
flexibility and safeguards.
Co-Chair John Torgerson commented that the greatest
flexibility his CS added to the bill was to page 2 lines
24-28, which dictated that a cost benefit was not necessary
if the cost to implement the regulation was identified in
the fiscal note. He said the intention was to stop the
Administration from adopting regulations that went beyond
the scope of the enabling or authorizing legislation. If it
would, the agency would have to return to the Legislature
with a request to change the statute to conform to their
proposal. The intent was to lessen the impact on the fiscal
notes of this bill.
Senator Dave Donley pointed out a further ultimate
safeguard. Although the Legislature hoped that the
Administration would follow the intent of the limited
application of the legislation, if something did go wrong,
there would be this savings clause dictating that the
regulation may not be adopted because the agency failed to
comply with the section. This would prevent lawsuits,
according to Senator Dave Donley.
Co-Chair John Torgerson added that there was also
conforming section on page 5 lines 11-16. It clearly stated
that if a copy of the fiscal note identified in the front
section were available from the designated state agency
then the cost benefit analysis would not be required. He
felt that showed the clear intent of the Legislature.
Amendment #8 failed to be adopted by a vote of 1-8. Senator
Al Adams cast the yea vote.
Senator Dave Donley spoke to Amendment #9. He noted the
Senate Judiciary Committee version of the bill, which had
applied to most of state government rather than the 3
departments currently, there was a general provision that
addressed problematic question of agency heads not
accepting the findings of hearing officers. Under their
existing powers of the Administrative Procedures Act, the
commissioners would remand the decisions back to the
hearing officers because they didn't agree with the
findings. There was no standard in existing law dictating
when a commissioner could remand a decision back for more
facts. He felt there needed to be some sort of standard
inserted. This amendment contained the language drafted in
the Senate Judiciary Committee hearings. He said there had
been discussion about another vehicle to do this. One was
the proposed constitutional amendment recently introduced
by the Senate Judiciary Committee providing that a separate
department conduct regulation hearings. He felt that the
odds of the constitutional amendment being adopted were
slim and suggested this amendment would help the situation.
He also felt a change to the Administrative Procedures Act
would also be helpful.
He wished for these provisions to apply to all departments,
not just the three left in the bill. He wanted a general
across the board provision. He welcomed any suggestions to
accomplish the goal of preventing the commissioners from
remanding hearing officer decisions without valid grounds.
Senator Dave Donley moved for adoption of Amendment #9.
Senator Al Adams objected.
Deborah Behr was invited to comment on the amendment. She
pointed out that hearing officers were not confirmed
cabinet officers and never came before the Legislature for
confirmation. Therefore, this amendment would allow an
unconfirmed cabinet officer, generally a private attorney,
to trump the decision of a confirmed cabinet officer. Most
regulations were adopted by boards or commissions made up
of lay people appointed by the Governor and confirmed by
the Legislature. There could be a hearing officer who was
not a licensed doctor issuing a decision that went against
medical practice, because the attorney had no knowledge. If
the agency could not find a substantial factual question
would be in court over what that the substantial question
was. Even with that, the Lieutenant Governor would have to
grant approval. She felt this would change the balance of
power.
Senator Dave Donley asked if Deborah Behr had any
suggestions for additional language to the Administrative
Procedures Act. Deborah Behr offered to work with sponsor
to find one.
Senator Dave Donley offered to withdraw his motion.
Co-Chair John Torgerson said they could go back to the
original language from an earlier workdraft. Senator Dave
Donley said multiple hearings were held in the Senate
Judiciary Committee and this was an ongoing discussion. He
welcomed assistance in setting standards but thought there
ought to be standards.
Deborah Behr restated her offer of assistance in detail.
Co-Chair John Torgerson told Deborah Behr this language was
included in another version. Senator Dave Donley was
willing to give them one more chance to come up with
something smoother. He said he could address the matter on
the Senate floor.
Senator Dave Donley withdrew his motion to adopt Amendment
Co-Chair John Torgerson turned the discussion to the fiscal
notes. He noted that some of the department's fiscal notes
went up. He commented the committee could take several
approaches to reduce the amounts. The departments could
testify to the reason the funding was needed.
Deborah Behr mentioned that the fiscal notes were drafted
against the "V" version. The fiscal notes to the "W"
version would go down. Co-Chair John Torgerson noted that
the CS Version "V" was substantially less restrictive than
the versions before.
BOB LOEFFLER, Director, Division of Mining, Department of
Natural Resources testified via teleconference from
Anchorage. He addressed the division's concerns with the
cost benefit analysis requirement and its potential affects
to the mining industry. He felt the cost benefit analysis
might have the unintended consequence providing a
significant legal handle that could unavoidably delay a
number of important mining projects.
Senator Dave Donley interrupted asking if the director was
familiar with page 3 lines 12-14 of the bill. Bob Loeffler
believed it said a regulation may not be voided but it
didn't address temporary restraining orders or other court
actions to remand for further analysis that would delay a
project.
Senator Dave Donley noted there was another section on page
2 lines 10-12 that could address the concerns regarding
restraining orders. He offered the committee could
incorporate that provision. Bob Loeffler replied that
would alleviate his concerns.
Bob continued his testimony saying that because a number of
mining projects required a specific regulation to
Department of Environmental Conservation's water quality
standards, a cost benefit analysis would have to be done
before a mine could be approved. He gave examples of the
Kensington Mine that required site-specific criteria and a
stream reclassification for the Red Dog Mine. He speculated
that a company that designed their project to maintain
clean water would have to jump another hurdle before
getting approval. That would be to prove their total
benefits were greater than the total costs. He didn't know
if that was the intention of the legislation, but it was
how he interpreted it.
He asked how good did an economic analysis have to be in
order to pass that hurdle. His answer was that it would
have to be better than that of any well-funded opposition.
For a large industrial mine, that could be substantial.
Co-Chair John Torgerson asked if the division intended to
adopt new regulations every time a mine opened. Bob
Loeffler did not, but noted that no but certain mines
needed regulations for water quality reasons.
Senator Dave Donley said the Senate Judiciary Committee had
been given a memo issued by Governor Knowles directing
state agencies to do a cost benefit analysis before
adopting regulations. He asked how the division implemented
that order. Bob Loeffler responded that the regulations
were typically done by Department of Environmental
Conservation. He had not done a cost benefit analysis of
the scope called for in the proposed bill. Senator Dave
Donley queried, "So you didn't comply with the Governor's
directive to all the members of the bureaucracy?" Bob
Loeffler said that before his division wrote new
regulations, it analyzed the cost and benefits, but in a
general manner rather than in the detail called for if a
major industrial facility effect a significant portion of
the population.
Senator Dave Donley moved for adoption of Amendment #10.
This would copy the language from page 2 lines 9-12, "A
person may not obtain a temporary restraining order.based
on a failure to comply with this subsection" and insert on
page 3 after line 14. Without objection it was adopted.
The discussion returned to the fiscal notes. Senator Dave
Donley suggested the committee direct departments do new
fiscal notes based on Version "W" and justify any increases
Senator Al Adams commented that with the addition of
Section 4 the cost benefit analysis added costs to the
departments. Co-Chair John Torgerson retorted that the cost
benefit analysis was only required if the regulations went
outside the scope of the enabling statute's fiscal note.
Therein lay the policy call.
Senator Dave Donley stated that it was surprising to him
that the Administration was opposed to the cost benefit
analysis. He detailed the arguments in favor of the
analysis.
Senator Al Adams asked if the sponsor wanted to start the
regulation process with the cost benefit analysis after a
new law was passed or from ground zero. Senator Dave Donley
clarified to limit the applicability to regulations adopted
for new statutes. He said that would be another
possibility but it didn't seem that radical. He noted that
the federal government already did it and it would be
reasonable to require state government as well.
Senator Randy Phillips requested the departments be given a
time limit for submitting the new fiscal notes. Co-Chair
John Torgerson said his office would request them in a
timely manner.
Co-Chair John Torgerson ordered the bill held in committee.
SENATE BILL NO. 33
"An Act relating to the Task Force on Privatization;
and providing for an effective date."
This was the forth hearing for this bill.
Senator Randy Phillips moved for adoption of CS SB 33
Version "N" as a Workdraft. Senator Al Adams objected. Co-
Chair John Torgerson explained a new subsection was added
to page 2 under the title, "Items not subject to
bargaining" to add an ability for the state to hire out
services previously performed by state employees. Section
3 was added and provided that if the state intended to
enter into contract with a private entity to perform
services the labor organization representing the affected
employees may submit a response to demonstrate that the
state would not reduce costs. The state would consider the
statement but would not provide a preference when making
the final decision.
Senator Al Adams removed his objection and Version "N" was
adopted without objection.
Senator Loren Leman moved for adoption of Amendment #4.
Senator Al Adams objected for explanation. Senator Loren
Leman explained the change would be to page 2 line 3 adding
a provision noting there may be state functions that should
be consolidated or otherwise performed more efficiently. He
did not want to limit the task force to only consider the
privatization or consolidation of services if there were
other options.
Senator Al Adams removed his objection and Amendment #4 was
adopted without objection.
Senator Loren Leman moved for adoption of Amendment #5. Co-
Chair John Torgerson objected. Senator Loren Leman
explained that this amendment would allow the commissioner
to appoint an advisory council to assist with specific
topics. The members would be volunteers and incur no
additional expenses. They would not have a vote in the
final proceedings. He shared that in his experiences
serving on commissions, this had been helpful. Senator Lyda
Green asked if Senator Loren Leman had talked about this
with the sponsor. Senator Loren Leman had not.
Co-Chair John Torgerson removed his objection. Senator Lyda
Green objected.
Amendment #5 was adopted by a vote of 8-1. Senator Lyda
Green cast the nay vote.
Co-Chair John Torgerson ordered the bill held in committee.
Tape: SFC - 99 #63, Side B 8:53 PM
Senator Dave Donley spoke to judgement and claims forms for
the Department of Law. He asked that the committee adopt
the forms.
Senator Sean Parnell said he had reviewed the forms and
felt Senator Dave Donley was onto something. He questioned
whether the Department of Law should be responsible for
answering the questions about prevention against future
incidents taken by the affected departments. Senator Dave
Donley responded that he thought the Department of Law did
take some corrective actions. He then noted a separate form
required of the affected agency asking their response to
the same question.
Senator Sean Parnell asked if the Department of Law had
commented on the forms. Senator Dave Donley said he spoke
with them before and they said they would work on
incorporating most into their own forms. The exception was
with question five asking who was responsible for the
incident, which resulted in the state's financial costs.
Senator Al Adams asked about question seven wanting to know
if that information would be used only after all
settlements had been made. Senator Dave Donley answered
yes. Senator Al Adams was concerned that litigants could
not use that information for their benefit. Senator Dave
Donley clarified that the Department of Law wouldn't bring
anything to the Legislature until it was final. Offers for
settlement would not be brought before the committee before
they were final. Co-Chair John Torgerson agreed.
Co-Chair John Torgerson this matter should be handled as
part of the operating budget. Senator Sean Parnell said it
should be sent to Department of Law for comment before the
committee took final action. Senator Dave Donley there
could be settlements submitted before the next budget
cycle.
Co-Chair John Torgerson ordered the judgements and claims
forms matter held in committee while Co-Chair Sean Parnell
sent a letter to the Department of Law asking for their
comments and suggestions.
Co-Chair John Torgerson announced the schedule for balanced
budget presentations 9:00 AM Friday. Monday's schedule
would be announced the next day. Bills would be next taken
up the following week.
ADJOURNED
Senator Torgerson adjourned the meeting at 9:02 PM.
SFC-99 (23) 3/24/99
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