Legislature(1995 - 1996)
05/04/1995 02:45 PM Senate FIN
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CS FOR HOUSE BILL NO. 130(FIN) am(reengrossed)
An Act relating to the adoption, amendment, and repeal
of regulations.
Co-chairman Halford directed that CSHB 130 (Fin)am
(reengrossed) be brought on for discussion. BRUCE CAMPBELL,
aide to Representative Kelly, came before committee. He
explained that the proposed bill has a few, simple goals
relating to the Regulation Procedures Act. Language in
secs. 1, 2, 3, and 4 closes a loop in the process involving
the Legislative Regulation Review Committee and establishes
the Governor as the key elected official overseeing the
regulation process. Secs. 5 and 6 deal with public comment.
Sec. 5 strengthens public hearing requirements and directs
agencies to pay additional attention to factual, substantive
comments as well as public testimony regarding the cost of a
proposed regulation. While agency staff has considerable
expertise in terms of the benefits of regulations, the
private sector has the most expertise in issues relating to
costs. Sec. 6 incorporates a new section requiring agencies
to report use or rejection of public comments. Secs. 7, 8,
and 9 are housekeeping. Sec. 10 deals specifically with the
Dept. of Environmental Conservation and asks the department
to consider alternate methods of complying with the statute
while paying close attention to costs. The effective date
ensures that the proposed bill applies to regulations
noticed after the enactment date.
Discussion followed between Senator Donley and Mr. Campbell
regarding application of Secs. 1 through 4. Mr. Campbell
noted application to the Legislative Regulation Review
Committee under Title 24 and the requirement that committee
comments be provided to both the Governor and state
agencies. A loop is thus created between the committee and
the Governor.
Mr. Campbell further noted that under Sec. 3 language, the
Governor may return regulations to an agency for two
reasons:
1. If they are inconsistent with faithful execution
of law.
2. Agencies have need to respond to specific issues
raised by the Legislative Regulation Review
Committee.
The Governor may delegate this authority solely to the Lt.
Governor.
In response to a further question from Senator Donley, Mr.
Campbell explained that the Regulation Review Committee will
receive a copy of proposed regulations. At the present
time, the Committee merely receives notice that regulations
will be forthcoming. The general theme of the proposed bill
is that issues brought to legislative attention are those
raised by the public. While the Governor now has the
authority to deny adoption of proposed regulations, HB 130
would include the Regulation Review Committee in the loop,
as far as comments are concerned, up to the end of the
public notice period. It allows the committee to address
concerns directly to the Governor rather than through a
commissioner.
Responding to a question from Senator Phillips regarding the
impact of passage of HJR 1, Mr. Campbell said that the
resolution would make the system work better. It brings the
legislature further into the loop. HB 130 contains
preparatory language to assist in the process.
JOHN LINDBACK, Chief of Staff, Office of the Lt. Governor,
next came before committee. He explained that the
administration has taken a neutral position on the bill, but
he added that, personally, the Lt. Governor is on the
"positive side of neutral." Of chief consideration are cost
aspects. The administration is very interested in
regulatory reform and looks forward to addressing the matter
in the interim, in concert with the legislature. As
attempts were made to amend the bill in previous committees,
it was determined that amendments are sometimes more costly
than expected. Mr. Lindback deferred comment on cost
aspects to staff from the Dept. of Law.
Mr. Lindback agreed that the proposed bill is a reasonable
approach to addressing weaknesses in the current process:
1. It is closer to the public perception of how the
regulation process works. The Office of the Lt.
Governor is occasionally contacted by people who
are under the impression that the Lt. Governor can
simply not adopt regulations sent to her for
filing based on how she feels about them. In
fact, filing is a perfunctory ministerial function
at this time.
2. It builds in extra steps to ensure that public
comment is taken into consideration before
regulations are adopted.
In his closing comments, Mr. Lindback asked that the
administration be allowed the opportunity to review its
fiscal notes prior to passage of the bill from committee, if
it is amended.
DEBORAH BEHR, Regulations Attorney, Dept. of Law, next came
before committee. She said she had reviewed the current
version of the bill and has no legal problems with it. She
attested to having worked closely with the sponsor and
expressed thanks for his cooperation in developing language
that will work for the administration.
Directing attention to page 5, line 16, Ms. Behr voiced need
to delete "consideration" and insert "attention." She
referenced page 3, line 29, and noted use of "attention" in
that instance and need for parallel language on both pages.
Parallel construction will clarify that the Dept. of
Environmental Conservation will not have to conduct two
types of review.
Ms. Behr acknowledged that the Governor presently plays an
active role in regulations. Some delay in adoption of
regulations will result from passage of the proposed bill
because of review by the Office of the Governor.
Recording of the use of public comments (Sec. 6) is a new
function for state government. At the present time, the
Alaska Administrative Procedures Act requires that the state
agency consider all comments. There is, however, no track
record when a commissioner accepts or rejects regulations.
Ms. Behr referenced fiscal notes associated with the new
function.
Speaking to cost compliance, Ms. Behr noted that bill
provisions direct state agencies to ask those who fall under
the proposed regulations what costs are likely to be and to
pay serious attention to those costs.
The final section deals with the Dept. of Environmental
Conservation and asks that the department give special
consideration to comments relating to the cost of compliance
and alternative methods. The department does not believe
this provision will be problematic.
Discussion followed concerning the number of regulations
dealt with in a year.
Senator Phillips MOVED for adoption of the recommended
change at page 5, line 16, substituting "attention" for
"consideration." No objection having been raised, the
amendment was ADOPTED.
Senator Donley directed attention to a subsequent amendment
which he explained was earlier added to other legislation
relating to regulations. He noted that under the existing
regulation system, the administration merely publishes
notice of what it intends to adopt. It does not show the
actual language. The administration then takes public
comment and thereafter adopts "almost anything they want."
It does not have to provide notice or conduct public
hearings if a subsequent change is made. The proposed
amendment requires that if substantial or significant
changes are made in the original intent of the regulation
identified in the notice, the administration is required to
re-notice the regulation and provide copies of what is posed
for adoption. Exemptions are similar to those worked out
several years ago relating to special boards such as the
board of fisheries, board of game, commercial fisheries
entry commission, emergency regulations, or regulations
adopted to meet federal requirements. In his closing
comments, Senator Donley acknowledged that the
administration would probably oppose the amendment. Ms.
Behr advised that the amendment would be extremely expensive
since it would require "new rounds of public comments on
virtually all regulations." As an example, she cited fee
regulations which would require a new public comment process
for each fee change. The administration could find itself
in a continuous cycle of redoing regulations and not meeting
budget obligations. She suggested that if the amendment is
of interest to committee, she be allowed time to obtain
fiscal notes from all departments. Ms. Behr noted that the
public can bring court challenges against regulations that
are not properly noticed.
Co-chairman Halford asked if the proposed amendment was
considered when the bill was before prior committees. Bruce
Campbell explained that amending language is close to that
in an earlier "Z" version of the bill. That bill is not now
before committee, mostly because of cost considerations.
The amendment is similar to ideas proposed by the State
Chamber of Commerce for discussion during the summer. It is
the kind of concept that might well fit in a broader
package. Mr. Campbell stressed that the goal of the
proposed bill is not to reek havoc within the system but to
try to find small ways to make things work. The proposed
amendment is a much more serious fix than the sponsor
initially intended.
Co-chairman Halford voiced his belief that the regulatory
standard should be changed to provide that instead of merely
being reasonable to implement a statute, a regulation must
be essential to implementation of the express purpose of the
statute.
Senator Donley said he would not offer the amendment at this
time. He further expressed support for Co-chairman
Halford's comments regarding need for overall change in the
process.
Senator Sharp MOVED for passage of SCS CSHB 130 (Fin) with
individual recommendations and accompanying fiscal notes.
No objection having been raised, SCS CSHB 130 (Fin) was
REPORTED OUT of committee with 18 zero fiscal notes and
notes from the following departments showing associated
costs:
Gov/Lt. Gov. $73.7
DEC (Solid Waste) 10.0
DEC (Wastewater) 4.5
DEC (Drinking Water) 6.0
DEC (Seafood Sanitation) 6.5
DEC (Palmer Lab.) 3.2
DPS (Commissioner's Office) 5.0
DOR 20.0
Co-chairmen Halford and Frank and Senators Phillips and
Sharp signed the committee report with a "do pass"
recommendation. Senators Donley, Rieger, and Zharoff signed
"no recommendation."
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