Legislature(2005 - 2006)BELTZ 211
02/03/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Alaska State Legislature
SENATE STATE AFFAIRS STANDING COMMITTEE
February 3, 2005
3:33 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Thomas Wagoner, Vice Chair
Senator Charlie Huggins
Senator Bettye Davis
Senator Kim Elton
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
Overview: Department of Administration - Hearings and Appeals
Legislative Legal Services Review Process of Department Proposed
Regulations
PREVIOUS COMMITTEE ACTION
No previous action to report.
WITNESS REGISTER
Deborah Behr
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Outlined steps in the regulation adoption
process
Terri Lauterbach
Legislative Legal and Research Services Division
Legislative Affairs Agency
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT:
Terry Thurbon
Acting Chief Administrative Law Judge
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Presented the Report from the Office of
Administrative Hearings
ACTION NARRATIVE
CHAIR GENE THERRIAULT called the Senate State Affairs Standing
Committee meeting to order at 3:33:28 PM. Present were Senators
Davis, Wagoner, Elton and Chair Therriault. Senator Huggins
arrived momentarily.
^ Overview: Department of Administration - Hearings and Appeals
CHAIR THERRIAULT announced the committee would hear an overview
of the changes made to the State of Alaska regulatory process as
a result of three pieces of legislation that were passed during
the previous session. The State Affairs Committee was hearing
the review because it oversees the Department of Administration
and that is where much of the administration of regulation takes
place.
3:34:31 PM
DEBRA BEHR, Assistant Attorney General with the Department of
Law, advised that she has been regulations attorney for the
State of Alaska since 1991 and that she would outline how
regulations are developed in the state and how the regulations
interface with the regulatory review process.
3:35:07 PM
She pointed to exhibits 1-6 and explained that they outline the
steps in the regulation adoption process.
HB 424 passed in 2004 formalized the legislative review process
of administrative regulation.
3:35:51 PM
The Administration is taking the review process seriously and it
has been successful. She has trained over 100 administrative
agency personnel on the process and over 40 assistant attorneys
general. She also updated the manual on the process and it's
available online.
Feedback is that regulations in the State of Alaska have
improved with the new process.
3:36:29 PM
She explained that the State of Alaska established a broad
definition for "regulation" and set a standard for application.
If a standard is set against the public, it must go through the
Administrative Procedures Act - it is a regulation and the
public must have notice and an opportunity to comment. For this
to happen, there must be a statute to adopt regulations.
3:37:18 PM
EXHIBIT 1:
Sec. 44.62.640. Definitions for AS 44.62.010 - 44.62.630.
(a) In AS 44.62.010 - 44.62.320, unless the context
otherwise requires,
(3) "regulation" means every rule, regulation, order, or
standard of general application or the amendment, supplement, or
revision of a rule, regulation, order, or standard adopted by a
state agency to implement, interpret, or make specific the law
enforced or administered by it, or to govern its procedure,
except one that relates only to the internal management of a
state agency; "regulation" does not include a form prescribed by
a state agency or instructions relating to the use of the form,
but this provision is not a limitation upon a requirement that a
regulation be adopted under this chapter when one is needed to
implement the law under which the form is issued; "regulation"
includes "manuals," "policies," "instructions," "guides to
enforcement," "interpretative bulletins," "interpretations," and
the like, that have the effect of rules, orders, regulations, or
standards of general application, and this and similar
phraseology may not be used to avoid or circumvent this chapter;
whether a regulation, regardless of name, is covered by this
chapter depends in part on whether it affects the public or is
used by the agency in dealing with the public;
3:37:50 PM
EXHIBIT 2:
Flow Chart showing the steps in the Regulation Adoption Process:
1. Planning and decision-making
2. Agency develops draft regulations, public notice, and
fiscal note
3. Consultation with agency attorney
4. Department of law opens file;
(a) Legislative Legal Concurrent Review Process [Exhibit
6]
5. Agency publishes and distributes public notice, additional
notice information, and regulations
6. Public comment period; oral hearing - if any
7. Agency adopts regulations
8. Final regulations package submitted to Department of Law
for review and approval; Governor's Office conducts review
9. Agency attorney reviews regulations
10.Regulations attorney reviews and either approves or
disapproves regulations
11.Unless returned by the Governor, Lt. Governor's Office
files approved regulations; effective in 30 days
(a) Lt. Governor's Office sends regulations to
Administrative Review Committee;
(b) Regulations published in Alaska Administrative
Code (AAC)
12.Agency posts summary on Alaska Online Public Notice System
3:39:43 PM
EXHIBIT 3: Lists the AAC agency contact names and numbers as of
1/13/05
3:40:11 PM
SENATOR KIM ELTON questioned whether you go back to the step 6
public comment period, if the regulations change substantively
in steps 10 or 11.
3:40:29 PM
MS. BEHR replied that could happen. If public comment says the
regulation isn't fair or complete then it should go back through
the public comment period. If change occurs as a result of
public comment, it wouldn't have to go back through the public
comment process. She advises commissioners to go for more public
comment anytime there's doubt because it's never wrong to ask
for more public comment.
SENATOR ELTON noted the timeframe listed in box 11 and asked
whether there were any parameters earlier in the process.
3:41:47 PM
MS. BEHR replied some are applied by statute. For example, there
must be at least 30 days between step 5 when a commissioner
gives public notice and step 7 when the regulation is adopted.
The public has a right to believe a decision will be made in a
reasonable time period and more than a year is not reasonable.
That isn't in statute but it's a due process issue.
3:42:34 PM
CHAIR THERRIAULT clarified that she said no sooner than 30 days
but no later than a year and acknowledged that pressure is
applied from several directions. There's pressure to get a
program into place and at the same time there's pressure to wait
until the regulations are in place.
3:43:16 PM
MS. BEHR agreed but emphasized that if the regulations aren't in
place, you'll lose in a court challenge in this state.
3:43:30 PM
SENATOR THOMAS WAGONER remarked the Certificate of Need is a
good example.
3:43:38 PM
MS. BEHR returned to Exhibit 3 and advised that many departments
have helpful web sites.
3:44:24 PM
EXHIBIT 4:
Lists Internet addresses regarding regulations matters.
http://www.law.state.ak.us/doclibrary/drafting_manual.html
regulations manual
http://www.legis.state.ak.us/cgi-bin/folioisa.dll/aac current
regulations
http://notes3.state.ak.us/pn/pubnotic.nsf online public
notice system
3:45:41 PM
EXHIBIT 5:
Contains a copy of CSHB 424(JUD)(efd fld S)
EXHIBIT 6:
FLOW CHART FOR NEW LEGISLATIVE REVIEW PROCESS FOR APA
REGULATIONS (Ch. 164, SLA 2004) [This is step 4 (a) in Exhibit 2
above]
CHAIR THERRIAULT said he was pleased to hear her say that having
early legislative oversight is helpful.
MS. BEHR replied it's productive.
3:46:12 PM
CHAIR THERRIAULT pointed to Exhibit 2 and showed the new step
between 4 and 5 that allows the legislative attorney a look at
the regulations early in the process.
He explained that the Exhibit 6 flow chart details the new step
between 4 and 5 in the Regulation Adoption Process.
He asked Ms. Lauterbach to explain how it works.
3:47:19 PM
TERRI LAUTERBACH, Legislative Legal and Research Services
attorney (LAA), reported that her work has been productive and
that the relationship between her division and the agencies has
been good. She warned of a gap in the process because no one is
charged with follow up to see whether or not an agency made the
changes that she suggested and the agency agreed to make.
3:48:31 PM
MS. LAUTERBACH said since everyone had a copy of her memo
regarding the review process, she would respond to questions.
CHAIR THERRIAULT told her the memo wasn't part of the packet and
asked her to give a verbal review. He noted that the members did
have a copy of the statute.
3:49:02 PM
MS. LAUTERBACH referenced Exhibit 2, which shows the steps in
the Regulation Adoption Process, and explained that legislative
legal is contemporaneous with step 5 and step 6 - during the
public comment period - rather than between step 4 and step 5 as
stated previously.
She said E-mails are sent to the affected standing committees at
the same time that LAA receives notification. At that time, LAA
decides whether they will conduct a review of regulations. The
law says her office must review proposed regulations that
implement new or change state statutes. That kind of regulation
triggers an automatic review.
She wouldn't automatically review a regulation that updates
references or establishes a new direction within a statutory
authority unless all other reviews were completed. However, this
type of review would become priority if a standing committee or
Legislative Council directed her to conduct a review because the
proposed regulations implicate major policy developments.
3:51:13 PM
She noted a limitation in AS 24.20.105 (g), which states that
LAA may not release information regarding a review except as
described in the section. LAA may send written copies of the
determination to the Administrative Regulation Review Committee,
the presiding officers, DOL, and state agencies. It doesn't say
that LAA can send a copy of the determination to the standing
committee that may have requested the review.
Reports aren't sent out unless she finds a problem and there is
no way for the standing committee that requests a review on a
set of regulations to learn of the determination. She suggested
that should be fixed.
3:53:01 PM
CHAIR THERRIAULT explained that they were making an effort to
control the number of reports that are distributed.
3:53:42 PM
MS. LAUTERBACH reiterated that the statute is very clear about
who may receive a copy of the review and the requester isn't
specified.
CHAIR THERRIAULT asked if they could ask her whether she just
completed a review.
MS. LAUTERBACH acknowledged they could but it probably wouldn't
be a fruitful question.
3:54:15 PM
SENATOR ELTON asked whether all members of the Regulation Review
Committee receive notification or just the chair.
MS. LAUTERBACH said they only notify the chair.
SENATOR ELTON expressed concern that no legislator in the
minority party would be notified if a major state policy shift
occurred.
3:55:18 PM
CHAIR THERRIAULT acknowledged they could review the suggestions
in the memo and consider legislation. He then asked about the
number of reviews and when she began work.
MS. LAUTERBACH replied the effective date was 10/26/04 and since
then she has received 18 sets to review and has reviewed all but
two. Eight of the 18 were based on new or changed state statutes
so she reviewed all eight. Seven of the eight were for SLA 2004
and one implemented a statute passed in 2002. She issued four
reports.
The standards used relate to statutory authority,
constitutionality, and statutory consistency. Typically the
problems related to drafting errors such as reference to
repealed statutes, inconsistent or inaccurate internal
references of the regulations. Sometimes, she said, the
regulation isn't clear enough for enforcement.
MS. LAUTERBACH said that two of her reports addressed whether or
not the agency was interpreting the authorizing statute
correctly. One related to a gap in regulations where part of a
law wasn't implemented. Except for the question about whether
the regulation interpreted the statute properly, the state
agencies agreed to make the suggested corrections or to
reconsider the clarity of the language used.
MS. LAUTERBACH said that although the agencies have agreed to
reconsider and make the changes she suggested, no one has the
duty to make sure that happens.
A committee hasn't designated a set of regulations as comprising
a major policy development so she hasn't done that type of
review yet, she said.
3:57:43 PM
She received 10 non-priority regulations to review and has
completed eight. Four made minor changes to occupational
licensing regulations, two updated reference to outside sources
and two made minor language changes. She said she didn't issue
any reports because none had significant deficiencies.
3:58:19 PM
CHAIR THERRIAULT recapped that one issue is that agencies may
indicate that they will make suggested changes, but the
Legislature doesn't have the power to force the regulation
changes because that's an administrative function. The
Legislature does have the power to make statutory changes and
all indications are that the arrangement is good.
3:59:31 PM
SENATOR ELTON noted that Ms. Lauterbach enters the process after
step four and he was curious whether she might sit in on public
hearings or simply conduct a paper review matching language to
statute.
MS. LAUTERBACH advised it's a legal review that is more similar
to a quality control review than a commentary on clarity. She
focuses on comparing the statute to regulations.
4:01:41 PM
CHAIR THERRIAULT asked Terry Thurbon to come forward.
4:01:54 PM
He explained that a second piece of legislation that passed
related to bringing in an independent regulation arbiter rather
than having the regulation writer sit as a judge if the
regulation is challenged. "We've collected all the hearing
officers from the departments and pulled them together under
Terry so there is an arms length between the judge and the
people who wrote the laws," he said. He asked her to explain her
part in the new system.
4:02:46 PM
TERRY THURBON, Acting Chief Administrative Law Judge for the
Office of Administrative Hearings, said the office has been
operating as an organizational unit since January 1, 2005 to
provide adjudications and assist in hearings.
She said SB 203 has four operative provisions and three are in
effect currently. The office and the administrative law judge
position were created by provision and provision also allowed
regulations work to be started during the interim and before the
July 2005 effective date. A transition provision allowed the
Department of Commerce, Community and Economic Development
(DCCED), the Department of Revenue (DOR), and the Department of
Administration (DOA) to agree to the transfer of hearing
officers and functions.
4:04:11 PM
To expedite the matter they arranged for the employees and their
functions to be transferred as of January 1, 2005. Initially 321
open cases were transferred and in the first 30 days the office
received an additional 100 referrals. "If that's the sign of
things to come, we're not going to want for work," she said.
She referred to a handout that showed the main case categories.
Between 70 and 75 percent of the caseload is from the Department
of Revenue and is represented by Child Support Services cases
and Permanent Fund cases. Occupational licensing represents
between 35 and 40 categories most of which are related to board
and commission decisions.
4:06:22 PM
Going forward, they believe that in addition to providing the
basic hearing function, they must consider the lead up to
hearings and resolving some matters on motion practice - short
of having an evidentiary proceeding.
4:08:05 PM
They hope to develop the regulations for hearing procedures by
7/1/05 because two major regulations projects lie ahead. These
are the procedural regulations for the conduct of the hearings
and a code of conduct for all hearing officers in the state
system.
4:08:57 PM
Another part of the regulations duty is a review of other agency
regulations that pertain to the process of hearings and that
duty will continue into the future.
In addition to the hearing function, regulation development and
review function, Ms. Thurbon identified four more core
functions:
· Peer reviews internal to the office - rather than of other
administrative law judges, hearings, and decisions - to
achieve consistency in decision making, clarity in decision
writing, and as a training opportunity for people who
working in new areas
· Mandate to publish all administrative decisions - includes
decisions made inside and outside the Office of
Administrative Hearings
· Surveying hearing participants to monitor the effectiveness
of the hearing process
· Training function - make training available to a broad
range of people involved in the administrative adjudication
process
4:15:15 PM
MS. THURBON said she would answer any questions.
CHAIR THERRIAULT recapped and said he anticipates the changes
will result in more consistency and a better product. He hopes
that hearing officers realize that when regulations are poorly
drafted, dispute resolution goes against the agency. The changes
also address the disparity between agencies in how to conduct
hearings, the level of training and the level of pay.
CHAIR THERRIAULT asked Ms. Thurbon whether she knew of anyone
who directly petitioned the court to be removed from the
regulatory process so they could argue the case directly in
court.
4:16:57 PM
MS. THURBON said she hadn't heard of anyone doing so, but
tracking appeals is another function the office should address.
4:17:28 PM
CHAIR THERRIAULT asked whether she encountered any difficulty
that would require a legislative fix.
MS. THURBON said not at this time.
CHAIR THERRIAULT recognized Robert Pearson from the Lt.
Governor's Office and asked whether he had any comments.
MR. PEARSON said he was available to answer questions and had no
prepared remarks.
There were no further questions.
CHAIR THERRIAULT announced that next week the committee would
hear SB 12, SB 76, and a Department of Administration overview
on the impact of HB 242 passed in 2001.
There being no further business to come before the committee,
Chair Therriault adjourned the meeting at 4:19:47 PM.
| Document Name | Date/Time | Subjects |
|---|