Legislature(2011 - 2012)CAPITOL 106
03/15/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB169 | |
| HB176 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 169 | TELECONFERENCED | |
| *+ | HB 176 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 169-LAA REVIEW OF PROPOSED REGULATIONS
8:06:48 AM
VICE CHAIR KELLER announced that the first order of business was
HOUSE BILL NO. 169, "An Act relating to the review of proposed
regulations by the Legislative Affairs Agency; and providing for
an effective date."
8:07:13 AM
REPRESENTATIVE GATTO, Alaska State Legislature, presented HB 169
on behalf of the House Judiciary Standing Committee, sponsor, on
which he serves as chair. He said he recently learned that
existing law restricts who attorneys working within the
Legislative Affairs Agency can notify regarding the results of a
regulation review. As explained in the sponsor statement
[included in the committee packet], Representative Gatto
explained that the proposed legislation would allow those
attorneys to notify the committee or council that requested the
review that the regulations do not meet statutory standards.
Furthermore, it would allow the attorneys to consult with and
notify the prime sponsor of the legislation if the proposed
regulation implements newly passed legislation. Finally, HB 169
would allow the attorneys to notify the person who requested the
regulation review when the regulations meet statutory standards.
8:09:16 AM
REPRESENTATIVE SEATON noted that language in existing statute
states that the assigned attorney "may consult" with specific
persons, and he asked if HB 169 would provide an exclusive list.
8:09:39 AM
SARA MUNSON, Staff, Representative Carl Gatto, Alaska State
Legislature, on behalf of the House Judiciary Standing
Committee, sponsor, which is chaired by Representative Gatto,
directed attention to AS 24.20.105(b), which prioritizes a list
of reviews which "shall be conducted". She paraphrased
paragraph (2), which read as follows:
(2) proposed regulations requested in
writing to be reviewed by a standing committee, the
Administrative Regulation Review Committee, or the
legislative council as implicating major policy
development.
MS. MUNSON said the phrase "may consult", in HB 169, refers only
to determining the review.
REPRESENTATIVE SEATON asked Ms. Munson to confirm his
understanding that the Administrative Regulation Review
Committee may conduct a review of new legislation without a
request to do so by a member of the legislature.
MS. MUNSON said she does not know the answer.
8:12:04 AM
VICE CHAIR KELLER ventured that one factor is who the sponsor is
versus who is on the Administrative Regulation Review Committee.
8:12:15 AM
REPRESENTATIVE P. WILSON opined that it is important for all
legislators to be notified, not just one.
REPRESENTATIVE GATTO said he thinks anything that is passed is
subject to regulations, and legislators may find that their e-
mail is loaded. He said he had taken the suggestion of Terri
Lauterbach, of Legislative Legal and Research Services,
regarding who should be included in the bill.
8:14:16 AM
MS. MUNSON cited AS 24.20.105(g), which read as follows:
(g) Except as provided in this section,
the Legislative Affairs Agency may not release any
information regarding its review of a proposed
regulation under this section.
MS. MUNSON said there is a confidentiality issue at stake.
8:15:36 AM
REPRESENTATIVE PETERSEN ventured that an assumption is being
made that sometimes Legislative Legal and Research Services does
not perceive problems with regulations that will have to be
created as a result of newly enacted legislation.
MS. MUNSON said newly enacted legislation sometimes requires
regulation that has to be reviewed, and if that review shows
regulation that does not meet statutory standards, HB 169 would
allow Legislative Legal and Research Services to notify the
prime sponsor of the legislation from which the regulation
resulted.
8:17:13 AM
REPRESENTATIVE GATTO said the legislature often passes
legislation that is in conflict with law, and regulation review
ensures that new law matches existing statute.
8:18:34 AM
REPRESENTATIVE GRUENBERG talked about a booklet, in which the
reviser of statutes gives a report on any newly enacted
regulations or court cases that suggest legislative review, and
he opined that judges should receive the book. He stated his
support of HB 169, and predicted it would result in "some really
good things coming from the legislature."
8:21:30 AM
REPRESENTATIVE SEATON said he understands the focus of the bill
is on the prime sponsor of legislation, but ventured that there
are committees of jurisdiction in the House whose
responsibilities are to look at law, and the responsibility of
the chair of those committees is to look at what is being passed
to see if it follows statute. He relayed that when he was vice
chair of the Administrative Regulation Review Committee, he sent
memorandums ("memos") to all members who were chairs of
committees to ensure their staff reviewed regulations proposed
by agencies to make certain those regulations were consistent
with the jurisdiction on which the committee had purview.
Representative Seaton asked the bill sponsor to consider
including those committee chairs in the bill.
8:23:58 AM
REPRESENTATIVE GATTO said it is not possible to determine in
advance of passing a bill what regulations will be created in
response to it; regulations can be adopted years after
legislation exists. In terms of who to notify, he opined that
the prime sponsor is "the person who has the most invested,"
whereas the committee chair may just be involved only in getting
the bill heard.
REPRESENTATIVE SEATON clarified that he would like notification
given to the committee chair that has current jurisdiction over
the issues being addressed in regulations stemming from
legislation.
8:26:17 AM
REPRESENTATIVE GATTO concurred with Representative Seaton that
the information should be sent to the chair with current
jurisdiction.
8:27:32 AM
REPRESENTATIVE KELLER noted that "a standing committee" is
listed in AS 24.20.105(b)(2) [text provided previously].
8:28:02 AM
REPRESENTATIVE SEATON said he thinks [AS 24.20.105(b)(2)] gives
a standing committee the authority to request a review, but that
is not the same as notifying the committee chair and staff. He
explained, "If the committee chair that has jurisdiction over
that didn't specifically ... make a request for a review of
regulation, they don't get notification."
8:28:42 AM
REPRESENTATIVE GRUENBERG said AS 24.20.105 deals with
Legislative Legal and Research Services within the Legislative
Affairs Agency, and there are other statutes that deal with the
Administrative Regulation Review Committee and standing
committees. He said a key point is the "triggering mechanism."
He paraphrased AS 24.05.182(a), which read as follows:
(a) A standing committee of the legislature furnished
notice of a proposed action under AS 44.62.190 shall
review the proposed regulation, amendment of a
regulation, or repeal of a regulation before the date
the regulation is scheduled by the department or
agency to be adopted, amended, or repealed.
REPRESENTATIVE GRUENBERG listed the following entities that
should be notified: Legislative Legal and Research Services,
the Administrative Regulation Review Committee, and the
[applicable] standing committee. He indicated that the system
will work better when there is notification.
8:32:31 AM
REPRESENTATIVE GATTO said he thinks Representative Gruenberg
recommendation makes sense, and he said he would not object to
an amendment. He suggested the amendment could be made in the
House Judiciary Standing Committee, which is the committee of
next referral.
8:33:07 AM
VICE CHAIR KELLER said that as a past chair of the
Administrative Regulation Review Committee, he thinks HB 169 is
a good bill. He ventured that a reform of the regulation review
process is probably needed, but he said it may be harmful to
turn HB 169 into a reform bill. He then directed attention to
proposed language on page 2, lines 7-10, which read as follows:
If, after performing a review requested under (b)(2)
of this section, the assigned attorney determines that
the proposed regulations meet the standards set out in
(d) of this section, the assigned attorney shall
communicate that determination to the requester.
VICE CHAIR KELLER questioned if there should be "some kind of
accountability or protection for that attorney."
REPRESENTATIVE GATTO offered his understanding that Vice Chair
Keller is requesting there be a second opinion.
8:35:46 AM
MS. MUNSON said she does not know about the accountability
mechanisms within [Legislative Legal and Research Services], but
stated that HB 169 would require its lawyers to provide
notification, even if there are no problems found with the
review, and that would help the requestor know that the process
has been completed.
8:36:40 AM
REPRESENTATIVE GRUENBERG cited AS 24.20.105(c), which read as
follows:
(c) Under AS 44.62.190(a)(7), the notice of
proposal action, along with a copy of the proposed
regulation, shall be furnished electronically by the
state agency to the
(1) Legislative Affairs Agency;
(2) chairs of the standing
committees with jurisdiction over the subject of the
proposed regulations;
(3) Administrative Regulation
Review Committee;
(4) legislative council.
REPRESENTATIVE GRUENBERG pointed out that that only applies
during the 30-day period of public comment, which is very little
time. He suggested that a stay could be put on reviews, to give
the legislature more than 30 days. He said he thinks [HB 169]
provides the opportunity for reform.
8:39:41 AM
REPRESENTATIVE SEATON stated his assumption that procedurally
all legislators get notification, even though that is not
supported by AS 24.20.105(c)(2).
VICE CHAIR KELLER said he is under the impression that all
legislators get notification.
8:41:25 AM
REPRESENTATIVE GATTO said he receives numerous e-mails, which
are notices of proposed rule-making, but questioned if there
were others he does not receive. He observed that electronic
notification is relatively easy to send, and the recipient can
choose whether or not to read the notifications.
8:42:14 AM
REPRESENTATIVE P. WILSON, regarding the subject of responding to
requests when no problems are found, referred to a sentence
written by Terri Lauterbach of Legislative Legal and Research
Services, on the second page of a memorandum ("memo") to the
bill sponsor dated 2/18/11, which read as follows [original
punctuation provided]:
I have deliberately not required this communication to
be in writing so that a phone call could suffice; the
requester, of course, could always request that the
"no problems" response be in writing.
REPRESENTATIVE P. WILSON asked the bill sponsor if he wants to
specify that the call be made in person, rather than having a
message left on a machine, because sometimes messages left don't
get received right away.
MS. MUNSON emphasized that this communication would be allowed
only in those situations where the reviewer has not found legal
flaws, and she said she does not know whether or not leaving a
message on a machine would be problematic in terms of "shall
notify". In response to Representative P. Wilson, she confirmed
that if there is a perceived problem with legislation, then the
attorney would have to relay that outcome to the requester in
writing.
8:44:44 AM
LISA KIRSCH, Drafting Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, Alaska State Legislature,
noted that prior to her work as a drafting attorney, she was a
regulation reviewer. She stated that under Title 44, Chapter
62, of the Administrative Procedure Act, proposed regulations
must go out to all legislators. There are at least 30 days of
notice before another step is taken, depending on what happens
during the comment period. The regulation review lawyer reviews
the regulation(s) and, under current law, is allowed to
communicate any concerns to the agencies, the Department of Law,
and the attorney general. She said the attorney looks for the
following: general legality and constitutionality, whether the
agency has the authority to adopt the regulations, and whether
those regulations are consistent with existing law. Ms. Kirsch
said HB 169 would amend the current, "odd situation" in which
standing committees are allowed to request a review, but the
release of the review is limited to a small group of people,
which does not include the committee that requested the review.
8:49:29 AM
MS. KIRSCH, to Representative P. Wilson's query about sending
the results of the review to everyone, stated that typically
memos that come out of Legislative Legal and Research Services
are kept confidential; there is type of attorney client
relationship between a Legislative Legal and Research Services
lawyer and a legislator, even when another legislator may make
the same request. She said she thinks that relationship
encourages open communication. She ventured that sending
information to everyone may result in a glut of information
being sent to many who have no concern in the issue.
8:50:17 AM
REPRESENTATIVE SEATON asked if notices of proposed actions and
copies of proposed regulations are being sent only to those
listed in AS 24.20.105(c) or are being sent also to the public
and to all legislators.
MS. KIRSCH responded, "All those things are happening
simultaneously." She characterized HB 169 as a "belt and
suspenders" bill to ensure that those who have jurisdiction over
the subject matter receive the information. Nonetheless, she
related that agencies are required to send out notice to a broad
range, including members of the public who have requested to be
on the list. The information also is broadcast on the news.
She said an electronic list of e-mail addresses is maintained to
ensure that this happens.
REPRESENTATIVE SEATON surmised that the agency sending out the
list must coordinate it, because he does not receive two copies
as a result of being a standing committee chair and legislator.
8:52:54 AM
DEBORAH BEHR, Chief Assistant Attorney General - Statewide
Section Supervisor, Legislation & Regulations Section, Civil
Division (Juneau), Department of Law, explained that [prior to
AS 24.20.105 (c)], under the Administrative Procedure Act, not
everybody got copies of the proposed regulations and legislative
council did not get routine mailings. She stated, "So, it's
kind of a blending of two things. But chairs of standing
committees -- you would get that under the Administrative
Procedure Act; the advantage of this is you also get a copy of
the regulations."
8:54:02 AM
REPRESENTATIVE SEATON said he can understand agencies not
wanting memos that question the legality of a regulation
becoming public. He asked if there would be any protection of
that confidentiality, and offered his understanding that [under
HB 169], "legal review of the regulation, which might be
questioned with the statute, would leave the confidentiality of
the legislature."
8:55:11 AM
MS. KIRSCH responded that she views the confidentiality
provisions as a limitation on what she can do with the memos and
with whom Legislative Legal and Research Services can discuss
them. Once the memo goes out, it is in the hands of the holder
of the confidentiality - the person who is listed in statute -
who then has the ability to further distribute the information.
In response to Representative Seaton, Ms. Kirsch clarified that
although the chair of the Administrative Regulation Review
Committee has the ability to share the confidential information
without punishment for doing so, Legislative Legal and Research
Services encourages that the chair not erode the
confidentiality.
8:59:20 AM
REPRESENTATIVE KELLER offered his understanding that HB 169
would not change confidentiality, but would allow for
notification and consultation.
9:00:00 AM
MS. KIRSCH said what Vice Chair Keller is saying is essentially
true. She reiterated her previous explanation.
9:00:39 AM
REPRESENTATIVE GRUENBERG stated, "This is a place where the
rules of confidentiality come up against the public's right to
know." He offered his understanding that Ms. Kirsch is talking
about a small aspect of whether the attorney can release
information, which is addressed in AS 24.20.105(g). He said the
issue at hand is not about adjudicating but about rule making
and whether the agencies are overstepping their bounds. He said
AS 24.20.105 deals with the proposed regulations, and he pointed
out that there is a small time-frame, people are not notified,
and there are issues of confidentiality. He said when he first
looked at HB 169, he thought the proposed legislation was not
controversial, but said he now sees the bill is "unlatching the
door of something extremely important."
REPRESENTATIVE GRUENBERG said the second aspect is the
examination of regulations and opinions, covered under AS
24.20.065. He said that is the final product that is published
by the Legislative Affairs Agency but sent to no one. He thinks
this is a key issue regarding the public's right to know.
9:03:41 AM
REPRESENTATIVE KELLER surmised that the bill would be held over.
He said he concurs that the regulation review process must be
improved. In response to Representative Gruenberg, he said he
is not prepared at this time to decide which committee would
take jurisdiction over the bill. He said he would prefer that
Representative Gruenberg speak with the bill sponsor and then
with the chair of the House State Affairs Standing Committee.
9:05:01 AM
The committee took a brief at-ease.
9:05:06 AM
VICE CHAIR KELLER talked about being the chair of the
Administrative Regulation Review Committee and the challenge of
serving on that committee.
9:07:55 AM
MS. KIRSCH, in response to Vice Chair Keller, said she has
always received good help from the executive branch agencies
adopting regulations. She said there were times when she did
not agree with the agencies' interpretation of statute or
pointed out mistakes of overlapping statutory and regulatory
authority gone undetected by the agencies; however, she said her
overall interaction with the agencies has been positive.
VICE CHAIR KELLER clarified that he wants to know what can be
done to make the regulation process more accessible to the
public.
9:10:03 AM
MS. BEHR said Vice Chair Keller has touched upon an issue that
is being addressed by the lieutenant governor, who is keenly
interested in improving electronic access so that the public can
easily use the state's web sites.
9:10:45 AM
REPRESENTATIVE P. WILSON suggested that if a statute or
regulation change is going to be made, the change should be
clearly defined.
MS. BEHR responded that some agencies send "Dear Alaska"
explanatory letters, but said she will emphasize Representative
P. Wilson's point in training.
9:12:07 AM
REPRESENTATIVE SEATON asked for clarification regarding what
information would be sent to past prime sponsors of legislation
and when it would be sent.
MS. KIRSCH responded that when public notices are received by
Legislative Legal and Research Services depends on when the
agencies put them out. She said Legislative Legal and Research
Services tries to finish its review during the public comment
period. That may happen at any time, she added. She said the
notice that goes out under the Administrative Procedure Act is
sent to everyone, including the prime sponsor of the underlying
statute that led to the change in regulation. She said, "If
they are on a standing committee or whatever or one of these
listed groups then they'll also get an electronic version of the
[regulatory] changes, as well." Under [HB 169], the prime
sponsor would receive any memorandum that points out problems,
provided he/she is still an active member of the legislature.
REPRESENTATIVE SEATON said he would like to see a flow chart
depicting the process. He said he is trying to figure out where
"this pre-final regulation communication" goes.
9:17:37 AM
MS. KIRSCH said she does not think "we" are contemplating
sending every communication between the regulatory review
attorney and the agencies. The attorney would have the
opportunity to consult with the prime sponsor if he/she had a
question about legislative intent. She continued as follows:
I suppose [that] if the prime sponsor requested ...
more information, ... [then] you could ... consult
with them under the change to the statute. But I
think the document we're talking about is the final
memo that contains the [regulation] attorney's review
of the legality and constitutionality and the
authority that the agency has. That memo would be the
document that would go to the prime sponsor.
9:18:55 AM
MS. KIRSCH, in response to Representative P. Wilson, said one
way she can determine legislative intent is by reading committee
minutes.
9:19:46 AM
REPRESENTATIVE KELLER, after ascertaining that there was no one
else who wished to testify, closed public testimony.
REPRESENTATIVE SEATON directed attention to the phrase "newly
enacted legislation" on page 2, line 3, and said he would like
clarification as to what that means.
9:20:45 AM
MS. KIRSCH relayed that the provisions related to "newly enacted
legislation" are found in AS 24.20.105(b)(1), which is the
provision that addresses the priority of regulations if there
are more regulations at any given time that Legislative Legal
and Research Services can review. She said [HB 169] addresses
the prime sponsor in connection with "those that are newly
enacted." Generally, she said, she views newly enacted
legislation as that which has been enacted within the past five
years. She said if legislation was enacted some time ago and
regulations are already in place, then that is just an amendment
of regulations, and she would not consider that "newly enacted".
9:22:36 AM
VICE CHAIR KELLER announced that HB 169 was heard and held.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB0176A.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 176 |
| 01a CS for HB 176 Version B.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 176 |
| 02 Sponsor Statement - HB 176.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 176 |
| 03 HB176-DOR-PFD-3-12-11.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 176 |
| 01 HB169 Version A 02-23-11.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 169 |
| 02 HB169 Sponsor Statement 03-08-11.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 169 |
| 03 HB169 Supporting Documents-Memo Legal Services 02-18-11.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 169 |
| 04 Fiscal Note HB 169 Legislature.pdf |
HSTA 3/15/2011 8:00:00 AM |
HB 169 |