CSHB 264(FIN): "An Act relating to negotiated regulation making; and providing for an effective date."
00CS FOR HOUSE BILL NO. 264(FIN) 01 "An Act relating to negotiated regulation making; and providing for an effective 02 date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 44.62 is amended by adding new sections to read: 05 Article 10. Negotiated Regulation Making. 06 Sec. 44.62.710. Purpose and applicability of AS 44.62.710 - 44.62.800. (a) 07 The purpose of AS 44.62.710 - 44.62.800 is to establish a framework for the conduct 08 of negotiated regulation making consistent with AS 44.62.010 - 44.62.320. Negotiated 09 regulation making is not a substitute for the requirements of AS 44.62.010 - 44.62.320 10 but may be used as a supplemental procedure to permit the direct participation of 11 affected interests in the development of new regulations or the amendment or repeal 12 of existing regulations. A consensus agreement reached by a negotiated regulation 13 making committee may be modified by an agency as a result of the subsequent 14 regulation making process. AS 44.62.710 - 44.62.800 may not be construed as an
01 attempt to limit innovation and experimentation with the negotiated regulation making 02 process or to limit other means to obtain public participation in the regulation making 03 process. 04 (b) The provisions of AS 44.62.710 - 44.62.800 may be used by an agency 05 even if other provisions of this chapter do not apply to that agency. 06 Sec. 44.62.720. Determination of need for negotiated regulation making 07 committee. (a) In addition to the regulation adoption requirements under 08 AS 44.62.010 - 44.62.320, an agency may determine that the use of a negotiated 09 regulation making committee to negotiate and develop a proposed regulation is in the 10 public interest. In making that determination, the agency is advised to consider 11 whether 12 (1) there is a need for a regulation, including whether any legal action 13 is pending that might resolve the need; 14 (2) there are a limited number of identifiable interests that are held by 15 more than one person and that will be significantly affected by the regulation; 16 (3) there is a reasonable likelihood that a committee can be convened 17 with a balanced representation of persons who 18 (A) can adequately represent the interests identified under (2) 19 of this section; and 20 (B) are willing to negotiate in good faith to reach a consensus 21 on the proposed regulation; 22 (4) there is a reasonable likelihood that a committee will reach a 23 consensus on the proposed regulation within a fixed period of time; 24 (5) the negotiated regulation making procedure will not unreasonably 25 delay the adoption of the final regulation; 26 (6) the agency has adequate resources and is willing to commit those 27 resources, including technical assistance, to the committee; and 28 (7) the agency, to the maximum extent possible consistent with the 29 legal or other obligations of the agency, will use the consensus of the committee as the 30 basis for the regulation proposed by the agency under AS 44.62.010 - 44.62.320. 31 (b) Upon determining that a negotiated regulation making committee will be
01 formed, an agency shall notify the public so that interested persons can apply to be 02 appointed to the committee. 03 Sec. 44.62.730. Use of convener. (a) An agency may use the services of an 04 impartial person as a convener to assist in making the determination of need under 05 AS 44.62.720 and to assist the agency to 06 (1) identify the persons who will be significantly affected by a 07 proposed regulation; and 08 (2) conduct discussions with affected persons on the issues of concern 09 and determine whether the establishment of a negotiated regulation making committee 10 is feasible and appropriate for the particular proposed regulation. 11 (b) A person acting as a convener may also be named as a facilitator under 12 AS 44.62.760. The convener shall report findings and make recommendations to the 13 agency. The report and recommendations of the convener shall be made available to 14 the public upon request. 15 Sec. 44.62.740. Establishment, support, and termination of committee. (a) 16 The agency may establish a negotiated regulation making committee to assist in the 17 formulation of a proposed regulation. The agency should strive to achieve the 18 balanced committee representation described under AS 44.62.720(a)(3). Members of 19 the committee serve at the pleasure of the head of the agency. If a committee member 20 is unable to attend a meeting, the agency head may select a designee to serve in that 21 member's place for a meeting. 22 (b) The agency head may expand the membership of the negotiated regulation 23 making committee if necessary to facilitate the workings of the committee. 24 (c) The agency shall make available administrative support to the negotiated 25 regulation making committee, including technical support, that the agency determines 26 necessary. 27 (d) A negotiated regulation making committee terminates upon adoption under 28 AS 44.62.010 - 44.62.320 of the final regulation under consideration unless the agency 29 specifies an earlier termination date. 30 Sec. 44.62.750. Committee duties, procedures, and report. (a) A negotiated 31 regulation making committee shall consider the matter proposed by the agency for
01 consideration and shall attempt to reach consensus concerning a proposed regulation 02 and any other matter on which the agency requests assistance and that is relevant to 03 the proposed regulation. 04 (b) The person representing the agency on a negotiated regulation making 05 committee shall participate in the deliberations of the committee with the same rights 06 and responsibilities of other members of the committee and is authorized to fully 07 represent the agency in the discussions and negotiations of the committee. 08 (c) An agency may adopt procedures for the operation of the negotiated 09 regulation making committee. The agency head shall appoint the chair of the 10 committee. 11 (d) If a negotiated regulation making committee achieves consensus on a 12 proposed regulation at the conclusion of the negotiations, the committee shall transmit 13 to the agency that established the committee a report containing the proposed 14 regulation. 15 (e) If a negotiated regulation making committee does not reach a consensus 16 on the proposed regulation, the committee shall transmit to the agency a report 17 specifying areas in which the committee reached consensus and the issues that remain 18 unresolved. The committee may include in the report other information, 19 recommendations, or materials that the committee considers appropriate. A member 20 of the committee may include as an addendum to the report additional information, 21 recommendations, or materials. 22 (f) AS 44.62.310 - 44.62.312 apply to meetings of a negotiated regulation 23 making committee. 24 Sec. 44.62.760. Facilitator selection, duties, and authority. (a) An agency 25 may appoint a person who is impartial to serve as a facilitator for the negotiations of 26 a negotiated regulation making committee. A person designated to represent the 27 agency on substantive issues may not serve as facilitator. 28 (b) A facilitator appointed or selected under (a) of this section shall 29 (1) preside at the meetings of the committee in an impartial manner, 30 unless the agency head has designated another person as chair; 31 (2) impartially assist the members of the committee to conduct
01 discussions and negotiations and to achieve consensus; 02 (3) coordinate with the agency regarding the management of records 03 of the committee; and 04 (4) perform other duties related to the negotiated regulation making 05 committee that are assigned by the agency head. 06 (c) A facilitator does not have decision-making authority for the committee. 07 Sec. 44.62.770. Employees, contractors, and funding. (a) An agency may 08 appoint an agency employee or obtain the services of another state employee or a 09 private contractor to serve as a convener or facilitator for a negotiated regulation 10 making committee. 11 (b) Before appointing or selecting a convener under AS 44.62.730 or a 12 facilitator under AS 44.62.760, an agency shall determine whether a person being 13 considered has a financial or other interest that would prevent the person from serving 14 in an impartial and independent manner. A person disqualified under this criterion 15 may not be considered further. 16 (c) The state may accept grants or gifts from any appropriate source to finance 17 the negotiated regulation making process of a committee if 18 (1) information on the name of the person giving the grant or gift and 19 on the amount of the grant or gift is available to the public; 20 (2) the grant or gift is given to and accepted by the state without 21 placing any condition on the membership of a negotiated regulation making committee 22 in an agency or the outcome of the negotiated regulation making process; and 23 (3) any other requirement of law has been met. 24 (d) A member of a negotiated regulation making committee shall disclose to 25 the agency and other members of the committee a grant, gift, or other financial benefit 26 that exceeds $150 and that has been accepted by the disclosing member to finance the 27 disclosing member's participation on the negotiated regulation making committee. 28 Sec. 44.62.780. Judicial review. An agency action relating to establishing, 29 assisting, or terminating a negotiated regulation making committee under AS 44.62.710 30 - 44.62.800 is not subject to judicial review. Nothing in this section bars judicial 31 review if the judicial review is otherwise provided by law. A regulation that is the
01 product of negotiated regulation making and is later subject to judicial review may not 02 be given greater deference by a court for that reason than a regulation that is not the 03 product of negotiated regulation making. 04 Sec. 44.62.790. Relationship to other requirements. The negotiated 05 regulation making authorized by AS 44.62.710 - 44.62.800 is in addition to the 06 procedures required under AS 44.62.010 - 44.62.320 for adopting, amending, or 07 repealing regulations, and, if an agency decides to use negotiated regulation making, 08 the negotiated regulation making shall, where possible, occur before the procedures 09 under AS 44.62.010 - 44.62.320 begin. 10 Sec 44.62.795. Confidentiality of certain records and documents. 11 Notwithstanding AS 09.25.100 - 09.25.220, records from private persons that are 12 requested or used by a negotiated regulation making committee and working 13 documents prepared by the committee that analyze or incorporate information from the 14 records shall be kept confidential if the records or working documents contain 15 proprietary information and the owner of the records or working documents requests 16 that the records or working documents be kept confidential. 17 Sec. 44.62.800. Definitions. In AS 44.62.710 - 44.62.800, 18 (1) "agency" means a department, an institution, a division, or another 19 administrative unit of the executive branch of state government authorized or required 20 by law to make regulations, except that "agency" does not include 21 (A) a board; a commission; a council, except the Alaska Coastal 22 Policy Council established in AS 44.19.155; an authority; or a public 23 corporation of the executive branch of state government authorized or required 24 by law to make regulations; or 25 (B) the Department of Corrections; 26 (2) "consensus" means unanimous concurrence among the interests 27 represented on a negotiated regulation making committee; 28 (3) "convener" means a person who performs the services identified 29 under AS 44.62.730 for an agency; 30 (4) "facilitator" means a person who performs the services identified 31 under AS 44.62.760(b) for a negotiated regulation making committee;
01 (5) "negotiated regulation making" means regulation making through 02 the use of a negotiated regulation making committee; 03 (6) "negotiated regulation making committee" means an advisory 04 committee to consider and discuss issues for the purpose of reaching a consensus in 05 the development of a proposed regulation; 06 (7) "person" has the meaning given in AS 01.10.060, and expressly 07 includes a public organization of any character; 08 (8) "regulation" has the meaning given in AS 44.62.640 and includes 09 the amendment or repeal of a regulation. 10 * Sec. 2. AS 09.65 is amended by adding a new section to read: 11 Sec. 09.65.235. Immunity for negotiated regulation making committee and 12 its members. A civil action for damages or costs may not be brought against a 13 negotiated regulation making committee established under AS 44.62.710 - 44.62.800 14 or any of its members for an act or omission occurring in the course and scope of the 15 official duties of the committee under this chapter. 16 * Sec. 3. AS 36.30.850(b) is amended by adding a new paragraph to read: 17 (38) contracts for a convener under AS 44.62.730 or for a facilitator 18 under AS 44.62.760 related to a negotiated regulation making process under 19 AS 44.62.710 - 44.62.800. 20 * Sec. 4. AS 39.25.110 is amended by adding a new paragraph to read: 21 (33) a person employed as a convener under AS 44.62.730 or as a 22 facilitator under AS 44.62.760 related to a negotiated regulation making process under 23 AS 44.62.710 - 44.62.800. 24 * Sec. 5. AS 39.52.960(4) is amended to read: 25 (4) "board or commission" means a board, commission, authority, or 26 board of directors of a public or quasi-public corporation, established by statute in the 27 executive branch, but excluding the Alaska Railroad and members of a negotiated 28 regulation making committee under AS 44.62.710 - 44.62.800 ; 29 * Sec. 6. AS 39.52.960(4) is amended to read: 30 (4) "board or commission" means a board, commission, authority, or 31 board of directors of a public or quasi-public corporation, established by statute in the
01 executive branch, but excluding the Alaska Railroad [AND MEMBERS OF A 02 NEGOTIATED REGULATION MAKING COMMITTEE UNDER AS 44.62.710 - 03 44.62.800]; 04 * Sec. 7. AS 09.65.235; AS 36.30.850(b)(38); AS 39.25.110(33); AS 44.62.710, 44.62.720, 05 44.62.730, 44.62.740, 44.62.750, 44.62.760, 44.62.770, 44.62.780, 44.62.790, 44.62.795, and 06 44.62.800 are repealed July 1, 2003. 07 * Sec. 8. Sections 1 - 5 and 7 of this Act take effect immediately under AS 01.10.070(c). 08 * Sec. 9. Section 6 of this Act takes effect July 1, 2003.