Legislature(1999 - 2000)

02/08/1999 01:35 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                                                                        
                   February 8, 1999                                                                                             
                      1:35 p.m.                                                                                                 
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Senator Robin Taylor, Chairman                                                                                                  
Senator Rick Halford, Vice-Chairman                                                                                             
Senator Dave Donley                                                                                                             
Senator John Torgerson                                                                                                          
Senator Johnny Ellis                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
SENATE BILL NO. 24                                                                                                              
"An Act relating to the adoption, amendment, repeal, legislative                                                                
review, and judicial review of regulations; and amending Rule 202,                                                              
Alaska Rules of Appellate Procedure."                                                                                           
                                                                                                                                
     -HEARD AND HELD                                                                                                            
                                                                                                                                
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
                                                                                                                                
SB 24 - See Judiciary minutes dated 1-29-99.                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
Ms. Deborah Behr                                                                                                                
Assistant Attorney General                                                                                                      
Legislation and Regulations Division                                                                                            
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK 99801-0300                                                                                                           
POSITION STATEMENT:  Commented on SB 24                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-8, SIDE A                                                                                                               
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:35 p.m. and announced the committee would consider SB 24                                                             
as the first and only order of business.                                                                                        
         SB  24-REGULATIONS: ADOPTION & JUDICIAL REVIEW                                                                         
                                                                                                                                
SENATOR DAVE DONLEY, prime sponsor of SB 24, moved the committee                                                                
adopt the new work draft marked 1-LS0274\H, dated 2-8-99. Without                                                               
objection, it was so ordered.                                                                                                   
                                                                                                                                
SENATOR DONLEY explained the changes incorporated into the new                                                                  
committee substitute: Section 3 states that a state agency may not                                                              
adopt regulations that are different than the legislative intent of                                                             
the statute under which they are being adopted.                                                                                 
                                                                                                                                
Section 4 additionally exempts the Department of Natural Resources                                                              
and the Department of Corrections as well as State Boards and                                                                   
Commissions from the requirements of the bill.                                                                                  
                                                                                                                                
Section 5 requires any proposed action on regulations, including                                                                
amendments, adoption or repeal of regulations, to be posted on the                                                              
Internet.                                                                                                                       
                                                                                                                                
Number 060                                                                                                                      
                                                                                                                                
SENATOR DONLEY moved to amend the committee substitute to include                                                               
"Limited Entry Commission" after "Board of Fish" on page 3, line                                                                
31. SENATOR HALFORD objected, then withdrew his objection and so                                                                
without objection, the committee substitute was amended.                                                                        
                                                                                                                                
SENATOR DONLEY continued, explaining Section 8 exempts the                                                                      
Department of Natural Resources and State Boards and Commissions                                                                
from the supplemental public notice requirements in the original                                                                
bill.                                                                                                                           
                                                                                                                                
Section 12 imposes a time limit of two years on the implementation                                                              
of regulations to comply with a new statute. If no regulations are                                                              
adopted within two years, a department is required to submit a                                                                  
report to the Legislature explaining why.                                                                                       
                                                                                                                                
Section 14 sets, in most cases, a two-year time limit on                                                                        
administrative adjudication.                                                                                                    
                                                                                                                                
Number 095                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR said that those people wishing to have regulations                                                              
carried out are being coerced by the department to  "play games".                                                               
Two years is an exorbitant amount of time and he would like to see                                                              
a standard of 6 months, as well as "some teeth" to enforce this                                                                 
provision. SENATOR DONLEY replied he is open to suggestions and                                                                 
merely proposed this as a reasonable starting point.                                                                            
                                                                                                                                
Number 122                                                                                                                      
                                                                                                                                
SENATOR TORGERSON asked why SENATOR DONLEY had proposed this idea                                                               
versus an absolute time line. SENATOR DONLEY replied this is a step                                                             
forward and "more than we have now". He would be willing to                                                                     
consider changes if the committee wants to do something stronger.                                                               
However, it would be difficult to impose a penalty that prohibited                                                              
a department from creating regulations after two years, considering                                                             
they may have wanted to avoid the regulations in the first place.                                                               
                                                                                                                                
CHAIRMAN TAYLOR remarked "You could end up with an Administrative                                                               
veto just by failure to do the regulations". SENATOR TORGERSON said                                                             
that was his point, and perhaps this section is too broad. SENATOR                                                              
DONLEY considered adding a requirement that the Commissioner of the                                                             
department failing to adopt the regulations sign an affidavit                                                                   
stating the delay was beyond their control. SENATOR DONLEY insisted                                                             
he is serious about enforcing compliance of this section but                                                                    
understands there are, on occasion, legitimate delays in the                                                                    
implementation of regulations. He remarked there is currently no                                                                
deadline, and the only recourse to compel the adoption of                                                                       
regulations is a lawsuit.                                                                                                       
                                                                                                                                
SENATOR TORGERSON reminded the committee they had requested from                                                                
the Department Of Law an example of a typical time line of a new                                                                
regulation. CHAIRMAN TAYLOR asked MS. DEBORAH BEHR if she had a                                                                 
response. MS. BEHR replied she sent a letter to the committee dated                                                             
February 3, 1999.                                                                                                               
                                                                                                                                
MS. BEHR explained the time line of a regulation depends on the                                                                 
complexity of a project; the minimum time, by statute, is sixty                                                                 
days. She has put regulations in place in sixty-one days but large,                                                             
complex projects require more public comment and can take a long                                                                
time. There is a "staleness rule" within the Department of Law that                                                             
requires new public comment if a proposal is more than one year                                                                 
old.                                                                                                                            
                                                                                                                                
Number 207                                                                                                                      
                                                                                                                                
SENATOR TORGERSON asked if MS. BEHR, taking into consideration the                                                              
Legislature's frustration with delays, could suggest an alternative                                                             
to the notice requirement of the department in Section 12.                                                                      
                                                                                                                                
MS. BEHR emphasized she had received this new committee substitute                                                              
only five minutes prior to speaking. She said, in her professional                                                              
opinion, Section 12 already has substantial teeth. If the                                                                       
Administrative Procedures Act (APA) is not followed, a regulation                                                               
can be voided. She indicated that under this provision, anyone who                                                              
is dissatisfied with a regulation, even a regulation required by                                                                
law and consistent with Legislative intent, can sue.                                                                            
                                                                                                                                
Number 233                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR asked about a case in which it took years to agree                                                              
on a regulation concerning solid waste but, due to a change in the                                                              
administration, was never signed into law.  CHAIRMAN TAYLOR                                                                     
remarked that it seems a garbage dump should have the same                                                                      
regulations under any administration. MS. BEHR said she would                                                                   
research this case but did know that both the federal government                                                                
and Native law issues were involved.                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR asked MS. BEHR for suggestions on how they could                                                                
"firm up" Section 12. CHAIRMAN TAYLOR said he preferred a one-year                                                              
deadline. He asked MS. BEHR if it was unusual that regulations                                                                  
would take two years to develop. MS. BEHR replied that the                                                                      
Department of Law already imposes a standard that requires new                                                                  
public comment on a project that has been noticed more than a year                                                              
before. MS. BEHR stated that with the budget crisis and thinly                                                                  
stretched personnel in many departments, she is concerned with                                                                  
setting "hard and fast" time lines. She proposed that, due to the                                                               
cost/benefit analysis and multiple rounds of public notice, the                                                                 
fiscal notes that agencies submit will be higher than those                                                                     
associated with the bill now. She concluded that the new                                                                        
requirements will require new personnel, and she is "not sure the                                                               
money is around to do that".                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR commented that the fiscal notes attached to the                                                                 
bill are "appalling." One department states, "The cost of                                                                       
performing the (cost/benefit) analysis would outweigh the benefits                                                              
obtained from doing the analysis." CHAIRMAN TAYLOR said, "They will                                                             
go out and collect a tax, even though the cost of collecting the                                                                
tax loses money, and that they wouldn't want to know that...that                                                                
seems odd to me."                                                                                                               
                                                                                                                                
Number 333                                                                                                                      
                                                                                                                                
SENATOR DONLEY mentioned another change to Section 4 that allows a                                                              
commissioner to determine that the matter involved is so minor that                                                             
the cost/benefit analysis is unnecessary. CHAIRMAN TAYLOR asked                                                                 
SENATOR DONLEY if this might be "an excuse frequently used".                                                                    
SENATOR DONLEY agreed it might, but maintained that the bill still                                                              
represents a step forward.                                                                                                      
                                                                                                                                
MS. BEHR made preliminary comments on the new committee substitute.                                                             
She said SB 24 still has significant legal problems, as she                                                                     
testified to at the last hearing. She said she is available to work                                                             
with the committee to come up with workable solutions that can be                                                               
achieved within the State's current fiscal capabilities.                                                                        
                                                                                                                                
MS. BEHR reported her continued concern with the ability of state                                                               
agencies to obtain information from businesses, given our state's                                                               
strong constitutional right to privacy. CHAIRMAN TAYLOR asked how                                                               
the federal government obtains this information, and MS. BEHR                                                                   
replied she did not know. She suggested individual contractors may                                                              
be needed to collect information.                                                                                               
                                                                                                                                
Number 344                                                                                                                      
                                                                                                                                
MS. BEHR repeated her concern that regulations may be tested and                                                                
overturned on the basis of an inadequate cost/benefit analysis. She                                                             
noted the federal government has a provision that regulations                                                                   
cannot be voided simply on the basis of a cost/benefit analysis; SB
24 has no such provision. MS. BEHR argued this language is quite                                                                
unusual and creates an unstable business climate. MS. BEHR said the                                                             
inclusion of aesthetics and unquantifiable factors in the                                                                       
cost/benefit analysis requirement is confusing and would be                                                                     
difficult to argue in court.                                                                                                    
                                                                                                                                
SENATOR DONLEY said he is beginning to see a pattern of continued                                                               
criticism of this bill, even when suggested changes have been                                                                   
incorporated into it. He remarked he will continue to work on this                                                              
bill.                                                                                                                           
                                                                                                                                
CHAIRMAN TAYLOR stated he understands MS. BEHR'S concern about                                                                  
possible obstruction of regulations, but said this is easily                                                                    
remedied by inserting an immunity provision. SENATOR DONLEY made a                                                              
note of this.                                                                                                                   
                                                                                                                                
Number 379                                                                                                                      
                                                                                                                                
SENATOR TORGERSON again suggested the committee look at the                                                                     
exemption given to the Department of Natural Resources (DNR). He                                                                
thought DNR could be included, especially if the immunity clause is                                                             
incorporated into the bill.                                                                                                     
                                                                                                                                
SENATOR HALFORD remarked he has seen this issue stonewalled for 15                                                              
years. He suggested the true cure would be to change the core                                                                   
sections of the Administrative Procedures Act. He said the phrases                                                              
"reasonably necessary" and "implied direction" in  Sections 1 and                                                               
2 of the APA "give license to regulators to do whatever they                                                                    
please". He said under the current APA, the standard is so skewed                                                               
against a challenge to a regulation, they can't win. He suggested                                                               
that had they changed those two things in the authorization                                                                     
sections of the APA, they would have changed the balance of power                                                               
in favor of private parties, and "we'd be a heck of a lot better                                                                
off".                                                                                                                           
                                                                                                                                
SENATOR HALFORD stated his support for the intent of SB 24 and                                                                  
noted the APA has not been amended since 1959. He added,                                                                        
"Government has become far more aggressive from then to now".                                                                   
                                                                                                                                
Number 418                                                                                                                      
                                                                                                                                
SENATOR DONLEY appreciated SENATOR HALFORD'S suggestion, but                                                                    
predicted it would produce more opposition from the Administration                                                              
in the form of multi-million dollar fiscal notes. He stated that he                                                             
has tried to work with the Administration on this bill but, "When                                                               
we take their suggestion, and then they criticize us for taking it,                                                             
it seems unreasonable".                                                                                                         
                                                                                                                                
DEBORAH BEHR reiterated that the bill has legal definition problems                                                             
and she is willing to work with the committee on it. She noted that                                                             
no other APA from any state contains the type of language proposed                                                              
in SB 24. She offered to make some suggestions for improvement from                                                             
the model Administrative Procedures Act.                                                                                        
                                                                                                                                
CHAIRMAN TAYLOR asked MS. BEHR if she could address the "root                                                                   
problem" raised by SENATOR HALFORD. MS. BEHR replied the deletion                                                               
of "implied terms" would require legislative statutes to be more                                                                
detailed and she, as regulations attorney, would have to reject all                                                             
regulations not totally rooted in statute. She stressed that all                                                                
typically standard changes not specified in the statute would have                                                              
to wait until the Legislature was in session in order to be                                                                     
considered.                                                                                                                     
                                                                                                                                
Number 455                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR mentioned the Legislature currently spends a good                                                               
deal of time correcting mistakes made in past legislation. He said                                                              
SB 24 might take up some time, but "some of us get kind of                                                                      
frustrated with it after a while, that we can't seem to have any                                                                
impact on those regulations".                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR asked MS. BEHR how she treats legislative intent.                                                               
MS. BEHR replied, when she is looking at statutes in order to                                                                   
determine the consistency of regulations, she looks at the language                                                             
of the statute as well as any purpose or intent provided with the                                                               
statute. CHAIRMAN TAYLOR asked if regulations would be restricted                                                               
if the Legislature included more intent language with each statute.                                                             
MS. BEHR replied that would be somewhat helpful, but under  SENATOR                                                             
HALFORD'S suggestion, a regulation could not be adopted unless it                                                               
was applicable under the express terms of the statute.                                                                          
                                                                                                                                
CHAIRMAN TAYLOR commented that last year Governor Knowles had                                                                   
vetoed the thirty pages of intent language that the Legislature had                                                             
included with the budget. MS. BEHR replied appropriations bills do                                                              
not generate regulations.                                                                                                       
                                                                                                                                
Number 490                                                                                                                      
                                                                                                                                
SENATOR TORGERSON asked MS. BEHR for an example of an emergency                                                                 
regulation and MS. BEHR cited the movement of a pilot station to a                                                              
more appropriate location in the wake of the Exxon Valdez oil                                                                   
spill. MS. BEHR said an emergency regulation, which is rare, must                                                               
be immediately necessary to preserve public safety. She clarified                                                               
that an emergency order is different from an emergency regulation                                                               
and is used by only a few departments, such as Fish and Game.                                                                   
                                                                                                                                
SENATOR TORGERSON asked about the requirement that emergency                                                                    
regulations be adopted into permanent regulation within 120 days or                                                             
are become void. MS. BEHR replied that the base language underlying                                                             
that is current law and only technical, minor changes have been                                                                 
made in SB 24.                                                                                                                  
                                                                                                                                
SENATOR DONLEY asked CHAIRMAN TAYLOR if SB 24 could be heard again                                                              
on Wednesday. CHAIRMAN TAYLOR assured him it could and SENATOR                                                                  
DONLEY said he would work on the bill in the meantime.                                                                          
CHAIRMAN TAYLOR asked if there was further testimony on SB 24.                                                                  
Hearing none, CHAIRMAN TAYLOR adjourned at 2:15 p.m.                                                                            

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