Legislature(1993 - 1994)
03/30/1994 01:48 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 30, 1994
1:48 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Dave Donley
Senator Suzanne Little
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE CONCURRENT RESOLUTION NO. 29 am
Relating to the military operations areas environmental impact
statement of the United States Air Force.
SENATE BILL NO. 213
"An Act extending the Alaska Public Utilities Commission and the
regulatory cost charge."
SENATE BILL NO. 228
"An Act relating to bail after conviction for various felonies if
the defendant has certain previous felony convictions."
SENATE JOINT RESOLUTION NO. 8
Proposing amendments to the Constitution of the State of Alaska
relating to capital projects and loan appropriations, and to the
expenditure limit.
SENATE BILL NO. 280
"An Act establishing the Afognak Island State Park."
CS FOR HOUSE BILL NO. 254(JUD) am(ct rule fld)
"An Act relating to open meetings of governmental bodies."
SENATE BILL NO. 292
"An Act relating to transfers of prisoners under the Interstate
Corrections Compact."
PREVIOUS SENATE COMMITTEE ACTION
HCR 29 - See State Affairs minutes dated 3/9/94 and 3/11/94.
SB 213 - See Labor & Commerce minutes dated 9/28/93, 2/8/94,
2/24/94, 3/10/94 and 3/15/94.
SB 228 - No previous action to record.
SJR 8 - See State Affairs minutes dated 1/27/93. See
Judiciary minutes dated 2/15/93, 2/19/93, 2/22/93,
2/22/93, 3/28/94.
SB 280 - See State Affairs minutes dated 3/2/94. See Resources
minutes dated 3/14/94.
HB 254 - See Judiciary minutes dated 3/9/94, 3/16/94, 3/21/94,
3/28/94.
SB 292 - See Judiciary minutes dated 3/23/94.
WITNESS REGISTER
Walt Wilcox, Staff to Representative Jeannette James
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on HCR 29 am
Josh Fink, Aide to Senate Labor & Commerce Committee
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on CSSB 213(L&C)
Dave Hutchens, Executive Director
Alaska Rural Electric Cooperative Association
703 West Tudor Road, #200
Anchorage, AK 99503
POSITION STATEMENT: Testified on CSSB 213(L&C)
Don Schroer, Chairman
Alaska Public Utilities Commission
1016 W. 6th, Suite 400
Anchorage, AK 99504-1963
POSITION STATEMENT: Testified on CSSB 213(L&C)
Senator Judy Salo
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of SB 228
Craig Tillery, Assistant Attorney General
Department of Law
1031 W. 4th, Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Testified in support of SB 280
ACTION NARRATIVE
TAPE 94-28, SIDE A
Number 001
S/JUD - 3/30/94
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:48 p.m. He brought HCR 29 am (COMMEND AIR FORCE: ENVIR R
IMPACT STATEMENT) before the committee as the first order of
business.
WALT WILCOX, staff to Representative Jeannette James, explained the
resolution shows support for the military in Alaska and further
demonstrates appreciation of their policy of involving and
informing the public of military activities. Specifically, it
thanks the military for involving the public in the preparation of
an environmental impact statement.
Number 030
SENATOR TAYLOR directed attention to an amendment to page 2, line
3, adding the phrase "endorses the proposal of the United State Air
Force and." Mr. Wilcox stated that Representative James endorses
the amendment.
Number 050
SENATOR JACKO asked for an explanation of the issue of
environmental concern for the air space. MR. WILCOX related that
military has an experimental area up toward Fort Yukon all the way
down to Talkeetna where they are overflying experimental aircraft
and doing bombing test missions. They have involved the public for
input into what they are doing as far as noise levels and the
impact on the various communities within the area.
Number 095
SENATOR JACKO moved the adoption of the following amendment:
Page 2, line 3: After "Legislature" insert "endorses the proposal
of the United States Air Force and"
SENATOR LITTLE objected. There was debate among committee members
on whether inserting the word "endorses" means that the Legislature
would be endorsing the proposal or whether it would be endorsing
the environmental impact statement. Senator Little maintained her
objection, and a roll call vote was taken with the following
result: Senators Taylor, Jacko voted "Yea" and Senators Donley and
Little voted "Nay." The Chairman stated the motion failed.
Number 224
SENATOR TAYLOR asked for the pleasure of the committee.
SENATOR JACKO moved that HCR 29 am be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
Number 230
S/JUD - 3/30/94
SENATOR TAYLOR brought SB 213 (APUC EXTENSION AND REGULATORY COST
CHARGE) before the committee as the next order of business.
JOSH FINK, aide to the Senate Labor & Commerce Committee, addressed
changes made to the original bill in the Labor & Commerce CS.
In Section 1, the maximum ceiling on the regulatory cost charge was
raised from .61 percent of gross revenues to .8. The change in
Section 1 was necessitated by the change in Section 2.
In Section 2, the cost of power is deleted from electric utilities'
gross revenues prior to the application of the regulatory cost
charge. Mr. Fink explained that according to the auditor the
percent workload committed to electric utilities is about 34
percent. At the time the audit was done, the RCC was at 5.77
percent. The auditor asserted that $192,000 was over collected
from electric utilities, that they were being over collected from
and there needed to be an adjustment made.
Speaking to Section 3, Mr. Fink explained that currently with the
regulatory cost there are four quarters that the charges are
submitted by the utilities to the Commission. The fourth quarter
charges come in after the beginning of the new fiscal year, so if
the Commission has overcharged on the regulatory cost charge, that
money should count against the following year's cost, but instead
it has been lapsing into the general fund. The auditor recommended
that the Department of Administration be allowed to earmark that
money so that the Legislature can reappropriate in the next fiscal
year which will reduce the regulatory cost charge.
Number 308
SENATOR DONLEY asked if the audit report included any other
utilities. MR. FINK acknowledged that it did, however, the
electric utilities were particularly concerned about the over
collections so the committee felt that should be addressed, but the
other utilities did not bring forward any concerns.
Number 370
Addressing Section 4, MR. FINK pointed out that currently, if a
regulated utility wants to opt out and 10 percent of the first
5,000 and 3 percent after the first 5,000 subscribers sign a
petition, an election will be held. To opt in to become a
regulated utility, 25 percent of the subscribers must sign a
petition to get an election. The auditor recommended the opt in
and opt out procedures be the same, and the change in Section 4
accomplishes that recommendation.
Section 5 increases the threshold of gross revenues for an electric
or telephone utility before a utility needs to be regulated by
changing the amount from $325,000 to $500,000. This was also a
change recommended by the auditor, so that small utilities are not
as closely regulated as large utilities.
Section 6 increases the threshold of gross revenues for other
utilities from $100,000 to $150,000 before they need to be
regulated.
Section 7 increases the threshold of gross revenues for refuse
collection utilities from $200,000 to $300,000. It also applies
the same opt in standards provided in Section 4.
Section 8 makes it easier for the consumers to get an election for
cable by changing it from 25 percent of the subscribers to 10
percent of the subscribers.
Section 9 is a technical conforming section.
Section 10 raises the regulatory cost charge for pipeline carriers
from .61 percent to .8 percent for the same rationale that applies
to Section 1.
Section 11 identifies over collection from the pipeline carrier's
regulatory cost charge so that it may be applied to the next year
to reduce the regulatory cost charge.
Section 12 is an extension of the Alaska Public Utilities
Commission from June 30, 1994, to June 30, 1998.
Section 13 repeals the sunset of the regulatory cost charges, the
rationale being that when the Commission is under sunset review,
the regulatory cost charge can be addressed at that time. When the
regulatory cost charge was passed it set a sunset date of December
31, 1994, exclusive of the APUC sunset.
Section 14 staggers the terms of the members of the Alaska Public
Utilities Commission. Currently, two members of the commission
terms expire on the same year. The section was drafted so that it
won't affect any current sitting members, but will apply to the
next round of appointments. Right now, one of the consumer seats
and one of the engineering seats expire at the same time.
Number 505
DAVE HUTCHENS, Executive Director, Alaska Rural Electric
Cooperative Association, stated that there were issues related to
the legislation that he wanted to address.
The first issue is whether or not the APUC should be extended, and
ARECA's view is that should be. APUC was created with the charge
of separating out the service areas and to protect the consumer
interest.
The second issue relates to the section in the committee substitute
which relates to the regulatory cost charge formula. He said the
at the present time, the regulatory cost charge is based on a flat
charge per revenue, and the workload and the revenue requirements
from RCC don't match very well. The change to the formula was
recommended by ARECA. He directed attention to and reviewed a
handout containing a summary of the changes that would result from
changing the RCC.
TAPE 94-28, SIDE B
Number 010
The third issue relates to Section 1 of the proposed Judiciary CS,
which would eliminate the phrase "liberally construed" from the
present APUC statute and replace it with the directive that their
statutes be "those specifically conferred by statute or necessarily
implied by a statutory grant of authority." ARECA believes that
it important that the powers of the Commission be those that the
Legislature determines them to be; that the Commission should not
be able to expand their authority by interpretation and by
liberally construing their powers. Mr. Hutchens emphasized that
ARECA does not have a problem with the present Commission, but they
see this as preventative maintenance to keep from having problems
in the future. Also, he suggested an effective date be added
making Section 1 effective July 1, l995, which would give the
Commission time to come back to the Legislature with a list of the
things that they don't have clear statutory authority to do, but
that they are now doing. The items on that list that the
Legislature agrees with could be enacted next year before this
would go into effect.
Number 055
DON SCHROER, Chairman, Alaska Public Utilities Commission, stated
that aside from the "liberally construed" section, the Commission
doesn't have any large objections to the bill.
Number 063
SENATOR TAYLOR asked Mr. Schroer, for the record, except for
Section 1, did APUC agree with the housekeeping measures contained
in the committee substitute, and MR. SCHROER acknowledged that they
do.
MR. SCHROER said the APUC has no quarrel whether they are financed
by RCC or under the general fund. Their goal is to keep it as
simple as possible. They have it working now, and they have done so
without asking for additional funding.
Number 086
MR. SCHROER requested that the following statement on the
"liberally construed" language be included as part of the record:
"HB 213 would extend the Alaska Public Utilities Commission and the
Regulatory Cost Charge that funds it until 1998. An amendment may
be proposed to delete the phrase "liberally construed" from he
Commission's enabling statute. The Commission opposes this
amendment."
"Routinely the Commission allows interim rates to go into effect
without requiring the utility to escrow funds or pose a bond under
AS 42.05.421(c). It does this by making rates interim refundable,
which again benefits the utility. The authority for this is
"liberally construed."
"The courts have not used the term "liberally construed" very often
(only eight times). Where they have, it has been to the benefit of
utilities in half of the cases."
"The Commission itself has only discussed the issue of "liberally
construed" nine times in 25 years. In at least three of these
cases, the Commission acted to allow the intention of the utility
or applicant for a certificate to be accomplished by waiving
technical irregularities. In another, the Commission found that it
did not have statutory authority to recognize a doctrine of
"retained rights" requested by a telephone utility under statute,
despite "liberally construed."
"Often the Commission has granted "temporary operating authority"
to a utility while its application for a certificate is pending
Both the customers and the utility benefit, but the authority for
temporary certificates is not explicit. It comes from "liberally
construed."
"Many utilities face increased competition as the result of changes
in technology and federal law. The Commission needs the
flexibility that "liberally construed" provides to allow existing
utilities to compete on an equal footing."
"Regulatory statutes are generally drafted broadly. Legislators
cannot foresee every problem that will arise in administering a
statute and the liberally construed language gives regulators the
flexibility to resolve these problems. The Legislature sets the
goals and the policies, leaving the implementation of the program
to the commission. The budget process and the sunset review
process provide plenty of room for legislative oversight."
"Justice Frankfurter recognized that administrative agencies were
created to perform a task, which neither courts nor legislatures
could accomplish, to regulate the practices of industries in a
rapidly changing world. The same considerations that led to the
creation of the Public Utilities Commission led the Legislature to
authorize their implied powers to be liberally construed."
"Deletion of this phrase would lead to strict construction of
implied powers. This means that legislation would be required
whenever a court finds a gap in an agency's power. This forces the
Legislature back into the regulatory role that they sought to
escape by creating the Commission in the first place. Removing
"liberally construed" from the Commission's powers and duties
section would have impacts well beyond statutory construction in
the courts."
Number 090
Mr. Schroer recommended that if the "liberally construed" language
is removed from the bill that other changes be made in the statute.
If that language is removed, the Commission will not be able to
give any temporary operating authority as they have done in the
past. Also, when a utility asks for a rate increase, the APUC
makes them in term refundable. The law provides for them to be in
term, but then the utility must put up a bond or set up an escrow.
The Commission liberally construes that's not necessary.
Mr Schroer stated he doesn't believe that any utility has ever
suffered because of the "liberally construed" language, and he
doesn't see any reason to change it when there hasn't been any
problem with it.
Number 150
SENATOR TAYLOR asked if there was a motion to adopt the Judiciary
CS.
SENATOR HALFORD moved that CSSB 213(JUD) be adopted. SENATOR
DONLEY objected and asked that the differences in the committee
substitute be outlined.
Number 180
There was discussion on adding an effective date to the
legislation, as well as discussion on the section relating to
staggered terms.
Number 235
SENATOR DONLEY maintained his objection to the adoption of CSSB
213(JUD) stating he agrees with Mr. Schroer that the APUC needs the
"liberally construed" authority. SENATOR HALFORD suggested adding
the one-year delayed effective date so that APUC could come back
with a proposal. The Chairman called for a roll call vote on the
motion to adopt the committee substitute: Senators Halford, Jacko
and Taylor voted "Yea" and Senators Little and Donley voted "Nay."
The Chairman stated the motion carried.
Number 285
SENATOR Taylor moved that an effective date of July 1, 1994 be
added to the committee substitute. Hearing no objection, the
amendment was adopted.
Number 306
SENATOR DONLEY moved that Section 1 of the committee substitute be
deleted. SENATOR HALFORD objected. The roll was taken with the
following result: Senator Donley voted "Yea" and Senators Jacko,
Little, Taylor and Halford voted "Nay." The Chairman stated the
motion failed.
Number 335
SENATOR HALFORD moved that an effective date for Section 1 of July
1, 1995 be added. Hearing no objection, the Chairman stated the
amendment was adopted.
Number 372
SENATOR DONLEY proposed a conceptual amendment to set out a
separate section for cable television regulation that would
automatically put cable television under the APUC except if they
follow the opt-out procedure. SENATOR HALFORD voiced his concern
with regulating cable television and what the cost of it would be.
The committee then discussed a conceptual amendment that would take
away cable television's monopoly. SENATOR TAYLOR stated the
conceptual amendment was to remove from regulation cable
television, which would remove from the authority of the APUC the
opportunity to regulate the geographic area, or the basic package,
or entry. SENATOR DONLEY questioned how this would affect FCC
requirements. SENATOR TAYLOR directed staff to request a legal
opinion as well as draft language on the conceptual amendment.
Number 540
SENATOR DONLEY said he wanted to propose a conceptual amendment to
delete the portions of the bill that create a dichotomy between
electrical utilities and other utilities. He then moved to delete
Sections 2, 3 & 11 of the draft committee substitute. SENATOR
JACKO objected. The roll was taken with the following result:
Senator Donley voted "Yea" and Senators Jacko, Little, Taylor and
Halford voted "Nay." The Chairman stated the motion failed.
There being no further amendments to the bill, SENATOR TAYLOR
stated SB 213 would be held to get a response back on the question
of cable television, as well as additional drafting to the
committee substitute.
TAPE 94-29, SIDE A
Number 001
S/JUD - 3/30/94
SENATOR TAYLOR brought SB 228 (NO BAIL FOR FELONS W/PREVIOUS
CONVICTIONS) before the committee as the next order of business.
SENATOR JUDY SALO, prime sponsor of SB 228, spoke to concern in her
district about a man with a very long list of violent crime, both
in California and Alaska, who was tried, convicted and sentenced
for a felony drug conviction and then pending appeal was released
on a $5,000 bail. After being released on bail, he violently
sexually assaulted two more women. SB 228 would prevent this from
happening again.
Senator Salo explained that the legislation has two sections.
Section 1 says that this is a matter of substance, not a court
change rule change and, therefore, a two-thirds vote is not
required. Section 2 adds to the list for which bail is already
denied sexual assault in the second and third degree, sexual abuse
of a minor in the second or third degree, and stalking. After
conviction, pending sentencing, and after sentencing, pending
appeal, bail would not be allowed.
Number 120
SENATOR LITTLE moved that SB 228 be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
Number 185
S/JUD - 3/30/94
SENATOR TAYLOR brought SB 280 (ESTABLISH AFOGNAK ISLAND STATE PARK) K)
before the committee as the next order of business. He directed
attention to backup material and explained it is the legislation by
which the State of Alaska would accept the areas (shaded in yellow
on the front of the material) that are being purchased from the
Native corporation by the federal government, through the trustees,
utilizing funds from the Exxon oil sale. He also noted there was
a draft committee substitute before the committee for its
consideration.
CRAIG TILLERY, Assistant Attorney General, Department of Law,
stated he works with the trustee council and was involved in doing
the work on the purchase of the land. He explained the land was
acquired by the Exxon Valdez Trustee Council, and it was land that
was originally sought by the Department of Interior for inclusion
in a nearby national wildlife refuge. The state trustees on the
Trustee Council objected to that, indicating their views that the
land had much more in common with nearby Shuyak State Park, and
they requested that the state be given the opportunity to acquire
the land. It was agreed that the state would have that
opportunity, that they would have one year from the date of
purchase in order to include the land within a state park. The
purchase was completed on November 23, 1993, and, if the land is to
come within state ownership, the Legislature must create the park
by November of this year.
Mr. Tillery pointed out that SB 280 has received wide support from
the Kodiak Island Borough, the City of Kodiak, the Kodiak Chamber
of Commerce, a variety of fishing groups, timber groups, etc.
Mr. Tillery said the bill has provisions in it which say that the
status as a state park shall not impair uses of owners of land
nearby or adjacent to the state park. He added there is no intent
to interfere with valid existing rights which would include the
road use agreement. The bill also contains a mandatory section
that requires reasonable access for hunting, fishing, trapping,
etc.
Mr. Tillery noted that Senator Taylor had asked that the department
look into the issue of the cost this acquisition might have in
terms of jobs. He said the mayor and the people in Kodiak view
this as a job enhancer. The money that was paid to the Native
corporation is being put in trust fund for use by the people for
the development and sustaining of jobs.
Number 314
SENATOR LITTLE asked for Mr. Tillery's comments on the proposed
committee substitute. MR. TILLERY said he didn't think the
committee substitute changes any of the legal descriptions or the
uses of the land. He said it deals with a matter not particularly
connected with Afognak Island State Park in the sense that it
appears to adopt a no net loss policy for multiple use lands. He
added that it would not invalidate the deal with the state and the
Trustee Council.
Number 345
SENATOR HALFORD moved that CSSB 280(JUD) be adopted. SENATOR
LITTLE objected, stating that she disagrees with some of the
findings in the bill, and she disagrees that when designating
additional park land that it requires removing that same amount of
acreage from park designation. SENATOR TAYLOR responded that he
didn't know how in good faith to the public we could possibly
accept and create another 44,000 acres of park lands when we can't
even manage 18 parks that already have some level of development in
them. He added that if this is precious enough property that we
need to go get it, then we should be willing to say to the public
that we're going to do something with this one, and we should give
up some of the ones that we currently can no longer afford to
maintain.
SENATOR TAYLOR stated there would be roll call vote on Senator
Halford's motion to adopt the committee substitute. The roll was
taken with the following result: Senators Jacko, Taylor, Halford
voted "Yea" and Senator Little voted "Nay." The Chairman stated
CSSB 280(JUD) was adopted.
Number 385
SENATOR JACKO moved that CSSB 280(JUD) be passed out of committee
with individual recommendations. SENATOR LITTLE objected. The
roll was taken with the following result: Senators Jacko, Halford
and Taylor voted "Yea" and Senator Little voted "Nay." The
Chairman stated the motion carried.
Number 410
S/JUD - 3/30/94
SENATOR TAYLOR brought SJR 8 (CAPITAL PROJECTS/EXPENDITURE LIMIT)
before the committee as the next order of business.
Kevin Sullivan, staff to the Senate Judiciary Committee, explained
the committee substitute incorporates the amendments adopted at the
previous hearing on the legislation. It repeals the existing
appropriation limit in the Alaska Constitution, changes the
effective dates, and changes the inflation rate from 6 percent to
3 percent.
SENATOR HALFORD moved that CSSJR 8(JUD) be adopted. SENATOR JACKO
objected. The roll was taken with the following result: Senators
Little, Halford and Taylor voted "Yea" and Senator Jacko voted
"Nay." The Chairman stated the committee substitute was adopted.
SENATOR HALFORD moved that CSSJR 8(JUD) be passed out of committee
with individual recommendations. SENATOR JACKO objected. The roll
was taken with the following result: Senators Taylor, Halford
voted "Yea" and Senators Little and Jacko voted "Nay." The
Chairman stated the motion to move the legislation out of committee
failed.
Number 490
S/JUD - 3/30/94
SENATOR TAYLOR brought CSHB 254(JUD) am(ct rule fld) (OPEN MEETING G
ACT) before the committee as the next order of business.
SENATOR TAYLOR moved an amendment to delete the Legislature from
the Open Meeting Act and to establish a committee to develop
guidelines for the conduct for open meetings adapted to the special
needs of the Legislature. SENATOR JACKO stated his support for the
amendment. Hearing no objection, the amendment was adopted.
There being no further amendments or testimony on HB 254, SENATOR
TAYLOR asked for the pleasure of the committee.
SENATOR HALFORD moved that SCS CSHB 254(JUD), as amended, (Draft
8\LS0859\T) be adopted. Hearing no objection, the motion carried.
SENATOR JACKO moved that SCS CSHB 254(JUD), as amended, be passed
out of committee with individual recommendations. Hearing no
objection, it was so ordered.
Number 525
S/JUD - 3/30/94
SENATOR TAYLOR brought SB 292 (INTERSTATE TRANSFERS OF INMATES)
before the committee as the final order of business. He said
Senator Frank has requested that action be taken on the bill, which
had a previous hearing by the committee on March 23.
TAPE 92-29, SIDE B
Number 002
There being no testimony on SB 292, SENATOR TAYLOR asked for the
pleasure of the committee.
SENATOR JACKO moved that SB 292 be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
There being no further business to come before the committee, the
meeting was adjourned at 4:15 p.m.
| Document Name | Date/Time | Subjects |
|---|