CSSB 24(FIN) AM: "An Act relating to regulations; amending Rule 65, Alaska Rules of Civil Procedure; and providing for an effective date."
00CS FOR SENATE BILL NO. 24(FIN) am 01 "An Act relating to regulations; amending Rule 65, Alaska Rules of Civil 02 Procedure; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. SHORT TITLE. This Act may be known as the Alaska Regulations Reform 05 Act. 06 * Sec. 2. AS 44.62.030 is amended to read: 07 Sec. 44.62.030. Consistency between regulation and statute. Except for 08 designated state agencies, if [IF], by express or implied terms of a statute, a state 09 agency has authority to adopt regulations to implement, interpret, make specific , or 10 otherwise carry out the provisions of the statute, a regulation adopted is not valid or 11 effective unless consistent with the statute and reasonably necessary to carry out the 12 purpose of the statute. 13 * Sec. 3. AS 44.62.030 is amended by adding new subsections to read: 14 (b) If, by express or implied terms of a statute, a designated state agency has
01 authority to adopt regulations to implement, interpret, make specific, or otherwise carry 02 out the provisions of the statute, a regulation adopted is not valid or effective, 03 notwithstanding any other provision of law, unless the regulation takes a reasonable 04 approach within the intent of the statute. 05 (c) In addition to the requirements of (b) of this section, a designated state 06 agency may not adopt a regulation that changes the intent of the statute being 07 implemented, interpreted, made specific, or otherwise carried out. 08 (d) When challenging a regulation under (b) or (c) of this section, the burden 09 of proof is on the person challenging the regulation to prove that the regulation does 10 not comply with (b) or (c) of this section. A person may not obtain a temporary 11 restraining order, a preliminary injunction, or a permanent injunction from a court to 12 enjoin the operation of a regulation based on a failure to comply with (b) or (c) of this 13 section. 14 * Sec. 4. AS 44.62 is amended by adding a new section to article 1 to read: 15 Sec. 44.62.035. Cost-benefit requirement. (a) When adopting a regulation, 16 an order of repeal, or an amendment to a regulation, unless the adopting state agency 17 head determines in writing that the cost to prepare a cost-benefit analysis is 18 prohibitive, a designated state agency shall prepare a cost-benefit analysis of the costs 19 to the public to comply with the proposed regulatory action and the benefits to the 20 public from the proposed regulatory action. The designated state agency shall consider 21 a cost or benefit even if the cost or benefit relates to aesthetics or is otherwise 22 nonquantifiable, and the designated state agency is not required to give the cost or 23 benefit a dollar value in order to prepare a cost-benefit analysis. 24 (b) Notwithstanding (a) of this section, a designated state agency is not 25 required to prepare a cost-benefit analysis if the estimated cost to the designated state 26 agency of implementing the proposed regulatory action is equal to or not substantially 27 greater than the cost of implementing the proposed regulatory action as estimated in 28 the fiscal note prepared for the bill that enacted the authorizing statute. 29 (c) Notwithstanding other laws to the contrary, if a cost-benefit analysis is 30 required by this section, the designated state agency may not adopt a regulation, order 31 of repeal, or amendment unless, under the analysis, the benefit to the public outweighs
01 the cost to the public. 02 (d) Consistent with this section, the adopting state agency head shall determine 03 the type of cost-benefit analysis that is relevant to the proposed regulatory action and 04 that is to be prepared by the designated state agency under this section. 05 (e) The cost-benefit analysis requirement of this section does not apply when 06 (1) the proposed regulatory action is necessary to implement a 07 budgetary modification; 08 (2) the designated state agency is expressly required by statute to adopt 09 the proposed regulation, order of repeal, or amendment; 10 (3) the proposed regulatory action is necessary to meet federal 11 requirements, to obtain an exemption for a person, program, or situation in the state 12 from federal requirements, or to revise, in a manner that reduces any burden imposed 13 by a federal requirement, how the federal requirement will apply to a person, program, 14 or situation in the state; or 15 (4) the proposed regulatory action would reduce the regulatory burden 16 on the public. 17 (f) A regulation, an order of repeal, or an amendment to a regulation may not 18 be voided because the designated state agency taking the regulatory action failed to 19 comply with this section. A person may not obtain a temporary restraining order, a 20 preliminary injunction, or a permanent injunction from a court to enjoin the operation 21 of a regulation based on a failure to comply with this section. 22 (g) The designated state agency shall make a copy of the cost-benefit analysis 23 prepared under this section available to the public before a hearing on the proposed 24 regulatory action, or, if a cost-benefit analysis is not required due to the operation of 25 (b) of this section, the designated state agency shall make a copy of the fiscal note 26 identified in (b) of this section available to the public before a hearing on the proposed 27 regulatory action. 28 (h) In this section, "adopting state agency head" means the commissioner of 29 the department within which the state agency is located. 30 * Sec. 5. AS 44.62.190(a) is amended to read: 31 (a) At least 30 days before the adoption, amendment, or repeal of a regulation,
01 notice of the proposed action shall be 02 (1) published in the newspaper of general circulation or trade or 03 industry publication that the state agency prescribes and in the Alaska Administrative 04 Journal; in the discretion of the state agency giving the notice, the requirement of 05 publication in a newspaper or trade or industry publication may be satisfied by using 06 a combination of publication and broadcasting; when broadcasting the notice, an 07 agency may use an abbreviated form of the notice if the broadcast provides the name 08 and date of the newspaper or trade or industry journal where the full text of the notice 09 can be found; 10 (2) mailed to every person who has filed a request for notice of 11 proposed action with the state agency; 12 (3) if the agency is within a department, mailed or delivered to the 13 commissioner of the department; 14 (4) when appropriate in the judgment of the agency, 15 (A) mailed to a person or group of persons whom the agency 16 believes is interested in the proposed action; and 17 (B) published in the additional form and manner the state 18 agency prescribes; 19 (5) furnished the Department of Law together with a copy of the 20 proposed regulation, amendment, or order of repeal for the department's use in 21 preparing the opinion required after adoption and before filing by AS 44.62.060; 22 (6) furnished to all incumbent State of Alaska legislators and the 23 Legislative Affairs Agency; 24 (7) furnished to the standing committee of each house of the legislature 25 having legislative jurisdiction over the subject matter treated by the regulation under 26 the Uniform Rules of the Alaska State Legislature, together with a copy of the 27 proposed regulation, amendment, or order of repeal for the committee's use in 28 conducting the review authorized by AS 24.05.182; 29 (8) furnished to the staff of the Administrative Regulation Review 30 Committee, together with a copy of the proposed regulation, amendment, or order of 31 repeal and, if preparation of an appropriation increase estimate is required by
01 AS 44.62.195, a copy of the estimate ; 02 (9) published on the Internet by a designated state agency 03 proposing the action if the designated state agency has the technological capability 04 to publish on the Internet . 05 * Sec. 6. AS 44.62.200(a) is amended to read: 06 (a) The notice of proposed adoption, amendment, or repeal of a regulation 07 must include 08 (1) a statement of the time, place, and nature of proceedings for 09 adoption, amendment, or repeal of the regulation; 10 (2) reference to the authority under which the regulation is proposed 11 and a reference to the particular code section or other provisions of law that are being 12 implemented, interpreted, or made specific; 13 (3) an informative summary of the proposed subject of agency action; 14 (4) other matters prescribed by a statute applicable to the specific 15 agency or to the specific regulation or class of regulations; 16 (5) a summary of the fiscal information required to be prepared under 17 AS 44.62.195 ; 18 (6) a statement that a copy of the cost-benefit analysis is available 19 from the designated state agency proposing the regulatory action if the cost- 20 benefit analysis is required under AS 44.62.035, or if a cost-benefit analysis is not 21 required due to the operation of AS 44.62.035(b), that a copy of the fiscal note identified 22 in AS 44.62.035(b) is available from the designated state agency proposing the regulatory 23 action . 24 * Sec. 7. AS 44.62.200(b) is amended to read: 25 (b) Except for designated state agencies, a [A] regulation that is adopted, 26 amended, or repealed may vary in content from the summary specified in (a)(3) of this 27 section if the subject matter of the regulation remains the same and the original notice 28 was written so as to assure that members of the public are reasonably notified of the 29 proposed subject of agency action in order for them to determine whether their 30 interests could be affected by agency action on that subject. 31 * Sec. 8. AS 44.62.200 is amended by adding a new subsection to read:
01 (d) A regulation that is adopted, amended, or repealed by a designated state 02 agency may vary in content from the summary specified in (a)(3) of this section if the 03 subject matter of the regulation remains the same and the notice was written so as to 04 assure that members of the public are reasonably notified of the proposed subject of 05 agency action in order for them to determine whether their interests could be affected 06 by agency action on that subject. 07 * Sec. 9. AS 44.62.210(a) is amended to read: 08 (a) On the date and at the time and place designated in the notice , the agency 09 shall give each interested person or the person's authorized representative, or both, the 10 opportunity to present statements, arguments, or contentions in writing, with or without 11 opportunity to present them orally. The state agency may accept material presented 12 by any form of communication authorized by this chapter and shall consider all 13 factual, substantive, and other relevant matter presented to it before adopting, 14 amending, or repealing a regulation. When considering the factual, substantive, and 15 other relevant matter, the agency shall pay special attention to the cost to private 16 persons of the proposed regulatory action. A designated state agency shall also pay 17 special attention to the benefit to private persons of the proposed regulatory 18 action. 19 * Sec. 10. AS 44.62 is amended by adding a new section to read: 20 Sec. 44.62.213. Supplemental notice and public proceedings. (a) If a 21 designated state agency rewrites a proposed regulation, amendment of a regulation, or 22 order of repeal after the designated state agency has complied with AS 44.62.190, 23 44.62.200, and 44.62.210, and if the rewriting substantially changes the substance of 24 the regulation, amendment, or order but the designated state agency would not 25 normally consider the change to be significant enough to require additional notice and 26 opportunity for comment under AS 44.62.190, 44.62.200, and 44.62.210, before 27 adoption, the designated state agency shall provide notice and opportunity for public 28 comment under AS 44.62.190(a)(2) - (9), 44.62.200, and 44.62.210 for the rewritten 29 regulation, amendment, or order of repeal. 30 (b) If a designated state agency does not provide the notice and opportunity 31 for public comment under (a) of this section for a rewritten proposed regulation,
01 amendment, or order of repeal, the designated state agency shall prepare a written 02 explanation of the reasons why the requirement of (a) of this section does not apply. 03 When the adopted regulation, amendment, or order of repeal is published in the Alaska 04 Administrative Journal, the lieutenant governor shall include the designated state 05 agency explanation with the text or a summary of the text of the regulation, 06 amendment, or order of repeal. 07 (c) A regulation, an order of repeal, or an amendment to a regulation of a 08 designated state agency may not be voided because the designated state agency taking 09 the regulatory action failed to comply with this section. A person may not obtain a 10 temporary restraining order, a preliminary injunction, or a permanent injunction from 11 a court to enjoin the operation of a regulation based on a failure to comply with this 12 section. 13 (d) This section does not apply to regulations 14 (1) adopted under AS 44.62.260 to make emergency regulations 15 permanent; 16 (2) that are necessary to meet federal requirements, to obtain an 17 exemption for a person, program, or situation in the state from federal requirements, 18 or to revise, in a manner that reduces any burden imposed by a federal requirement, 19 how the federal requirement will apply to a person, program, or situation in the state; 20 or 21 (3) that would reduce the regulatory burden on the public. 22 * Sec. 11. AS 44.62.230 is amended to read: 23 Sec. 44.62.230. Procedure on petition. Upon receipt of a petition requesting 24 the adoption, amendment, or repeal of a regulation under AS 44.62.180 - 44.62.290, 25 a state agency shall, within 30 days, deny the petition in writing or schedule the matter 26 for public hearing under AS 44.62.190 - 44.62.215. However, if the petition is for an 27 emergency regulation, and the agency finds that an emergency exists, the requirements 28 of AS 44.62.035, 44.62.040(c), [AS 44.62.040(c)] and 44.62.190 - 44.62.215 do not 29 apply, and the agency may submit the regulation to the lieutenant governor 30 immediately after making the finding of emergency and putting the regulation into 31 proper form.
01 * Sec. 12. AS 44.62.250 is amended to read: 02 Sec. 44.62.250. Emergency regulations. A regulation or order of repeal may 03 be adopted as an emergency regulation or order of repeal if a state agency makes a 04 written finding, including a statement of the facts that constitute the emergency, that 05 the adoption of the regulation or order of repeal is necessary for the immediate 06 preservation of the public peace, health, safety, or general welfare. The requirements 07 of AS 44.62.035, 44.62.040(c) [AS 44.62.040(c)], 44.62.060, and 44.62.190 - 08 44.62.215 do not apply to the initial adoption of emergency regulations; however, upon 09 adoption of an emergency regulation , the adopting agency shall immediately submit 10 a copy of it to the lieutenant governor for filing and for publication in the Alaska 11 Administrative Register, and , within five days after filing by the lieutenant governor , 12 the agency shall give notice of the adoption in accordance with AS 44.62.190(a). 13 Failure to give the required notice by the end of the 10th day automatically repeals the 14 regulation. 15 * Sec. 13. AS 44.62.260 is amended to read: 16 Sec. 44.62.260. Limitation on effective period of emergency regulations. 17 (a) A regulation adopted as an emergency regulation does not remain in effect more 18 than 120 days unless the adopting agency complies with AS 44.62.035, 44.62.040(c) 19 [AS 44.62.040(c)], 44.62.060, and 44.62.190 - 44.62.215 , to the extent they are 20 applicable to the regulation, either before submitting the regulation to the lieutenant 21 governor or during the 120-day period. 22 (b) Before the expiration of the 120-day period, the agency shall transmit to 23 the lieutenant governor for filing a certification that AS 44.62.035, 44.62.040(c) 24 [AS 44.62.040(c)], 44.62.060, and 44.62.190 - 44.62.215 , to the extent they were 25 applicable to the regulation, were complied with before submitting the regulation to 26 the lieutenant governor, or that the agency complied with those sections within the 27 120-day period. Failure to so certify repeals the emergency regulation; it may not be 28 renewed or refiled as an emergency regulation. 29 * Sec. 14. AS 44.62 is amended by adding a new section to read: 30 Sec. 44.62.285. Time limit for adoption. (a) A designated state agency may 31 not take more than two years to adopt regulations that the designated state agency is
01 required to adopt by a statute. The two-year period begins on the effective date of 02 enactment of the statute requiring the adoption of the regulations. 03 (b) If a designated state agency fails to comply with (a) of this section, the 04 designated state agency shall prepare a written report containing the reasons for the 05 failure and submit the report to the president of the senate, the speaker of the house 06 of representatives, and the Administrative Regulation Review Committee established 07 under AS 24.20.400. Notwithstanding AS 44.62.300, a court may not hold a 08 regulation invalid for failure to comply with this section. 09 (c) The requirement of (a) of this section is not intended to prohibit a 10 designated state agency from amending a regulation after the regulation has been 11 adopted. 12 (d) This section does not apply to regulations that are necessary to meet 13 federal requirements, to obtain an exemption for a person, program, or situation in the 14 state from federal requirements, or to revise, in a manner that reduces any burden 15 imposed by a federal requirement, how the federal requirement will apply to a person, 16 program, or situation in the state. 17 * Sec. 15. AS 44.62.300 is amended by adding new subsections to read: 18 (b) Except where a court has other grounds for holding the regulation invalid, 19 a court that reviews the validity of a regulation of a designated state agency shall hold 20 the regulation valid unless 21 (1) the regulation uses an approach that causes more than the least 22 necessary intrusion on the rights and property of the persons affected by the regulation; 23 and 24 (2) the approach taken by the regulation is not required by a substantial 25 state interest. 26 (c) Notwithstanding (b) of this section, when an action for declaratory relief 27 is brought under (a) of this section, a court may not issue a temporary restraining 28 order, a preliminary injunction, or a permanent injunction based on (b) of this section 29 to stop the operation of a regulation of a designated state agency. 30 (d) In (b)(2) of this section, the person challenging the regulation carries the 31 burden of proving that there is not a substantial state interest that requires using the
01 approach taken by the regulation. 02 (e) The provisions of (b) - (d) of this section do not apply to regulations that 03 are necessary to meet federal requirements, to obtain an exemption for a person, 04 program, or situation in the state from federal requirements, or to revise, in a manner 05 that reduces any burden imposed by a federal requirement, how the federal requirement 06 will apply to a person, program, or situation in the state. 07 * Sec. 16. AS 44.62.640(a) is amended by adding a new paragraph to read: 08 (5) "designated state agency" 09 (A) means 10 (i) the Department of Environmental Conservation; 11 (ii) the Department of Natural Resources; and 12 (iii) the Department of Fish and Game for habitat and 13 restoration programs; 14 (B) does not include 15 (i) a board or commission located in an agency 16 described in (A) of this paragraph; or 17 (ii) any other organizational entity located in an agency 18 described in (A) of this paragraph if the organizational entity is 19 governed by a board whose members are subject to confirmation by the 20 legislature. 21 * Sec. 17. APPLICABILITY. (a) Sections 1 - 13 and 15 of this Act apply to the 22 adoption, amendment, or repeal of a regulation if the original notice under AS 44.62.190, as 23 amended by sec. 5 of this Act, of the adoption, amendment, or repeal is given on or after the 24 effective date of this Act. 25 (b) Section 14 of this Act applies to the adoption of regulations if the effective date 26 of the Act enacting the statutory authority requiring the adoption is the same as or after the 27 effective date of this Act. 28 * Sec. 18. COURT RULE CHANGES. AS 44.62.030(d), enacted by sec. 3 of this Act, 29 AS 44.62.035(f), enacted by sec. 4 of this Act, AS 44.62.213(c), enacted by sec. 10 of this 30 Act, and AS 44.62.300(c), enacted by sec. 15 of this Act, change Rule 65, Alaska Rules of 31 Civil Procedure, by prohibiting temporary restraining orders and injunctions in certain
01 situations. 02 * Sec. 19. This Act takes effect July 1, 2000.