Legislature(2015 - 2016)CAPITOL 106
02/04/2016 08:00 AM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB229 | |
| HCR15 | |
| HB273 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 273 | TELECONFERENCED | |
| *+ | HB 229 | TELECONFERENCED | |
| *+ | HCR 15 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 229-REPEAL ADMIN. REG. REVIEW COMMITTEE
8:07:57 AM
CHAIR LYNN announced that the first order of business would be
HOUSE BILL NO. 229, "An Act relating to regulation notice and
review by the legislature; and relating to the Administrative
Regulation Review Committee."
8:08:20 AM
TOM WRIGHT, Staff, Representative Mike Chenault, Alaska State
Legislature, presented HB 229 on behalf of Representative
Chenault, prime sponsor. He related that the purpose of HB 229
is to repeal the statutes pertaining to the Administrative
Regulation Review Committee. He stated that according to the
Legislative Research Services report, included in the committee
packet, the Administrative Regulation Review Committee has not
overturned any regulations going back to the Twenty-Third Alaska
State Legislature of 2003-2004.
8:10:27 AM
MR. WRIGHT stated that although AS 24.20.445 provides that the
committee can suspend regulations for a "certain time period,"
the Alaska Supreme Court ruled in a 1980 case, State v.
A.L.I.V.E. Voluntary, that the legislature has no implied power
to veto agency regulations by informal legislative action, and
such actions violate Article II of the state constitution. The
action that is available to the Administrative Regulation Review
Committee [to veto agency regulations] is to either supersede or
nullify regulations by way of introducing legislation. However,
Legislative Research Services was not able to find any effort
[by Administrative Regulation Review Committee] to do so from
2003 to the present.
MR. WRIGHT stated that the proposed legislation would repeal all
references to the Administrative Regulation Review Committee
throughout the statutes. One of the statutes that would be
deleted is Section 44.62.320, "Submittal for legislative
review." This statute calls for regulations that are filed by
the lieutenant governor to be submitted to the chair and all
members of the Administrative Regulation Review Committee for
review under AS 24.20.400 through AS 24.20.460 along with the
fiscal information. Legislative Legal and Research Services no
longer has an attorney assigned to review regulations, as that
position was not filled due to cost-cutting efforts. The budget
for this committee was $100,000 in the past and was halved last
year, so would result in savings in the legislative budget of
$53,000.
MR. WRIGHT relayed that to take the place of the Administrative
Regulation Review Committee, there is a resolution that will be
addressed later giving standing committees or any committees the
power to review those regulations. Instead of the
Administrative Regulation Review Committee, it would be up to a
standing committee to decide if it wanted to take up
regulations, nullify regulations, or address regulations through
legislation.
8:13:28 AM
CHAIR LYNN conjectured that if the committee identified a
regulation causing a problem, the members would then have the
ability hold a hearing on that particular regulation.
MR. WRIGHT confirmed Chair Lynn's supposition and added that he
believes that ability already exists and HB 229 just clarifies
that the jurisdiction for regulation review would be turned over
to the standing committee. In this way there's a fallback to
address those regulations if they fall under the committee's
jurisdiction.
CHAIR LYNN restated that a particular regulation could be
proposed for review in a committee and action taken as with any
proposed legislation.
MR. WRIGHT emphasized that he intends no disrespect to those who
initiated and served on the Administrative Regulation Review
Committee when he asserts that there is probably more expertise
among members of a committee who deal with certain issues. He
maintained that the intentions were good; however, the purpose
and intent was never really fulfilled and, by virtue of the
State v. A.L.I.V.E. Voluntary Alaska Supreme Court case,
regulations cannot be suspended through informal action. This
aligns with the sponsor's desire to take statutes off the books
that aren't working, not intended, or outdated. He concluded by
reaffirming that this also would be a cost-saving measure for
the legislature.
8:15:30 AM
MR. WRIGHT, in response to Chair Lynn, reiterated that the
fiscal note indicates a savings of $53,000 under HB 229.
Originally $100,000 was allocated to the Administrative
Regulation Review Committee and that amount was cut in half last
year. The cost was for the purpose of having staff on board who
would devote their time to overseeing regulations and bringing
them up before the committee. A person in Legislative Legal and
Research Services distributed memos to the Administrative
Regulation Review Committee and to the presiding officers. The
sponsor believes that the intent and the purpose can be achieved
by standing committees and special committees.
8:17:06 AM
REPRESENTATIVE KELLER asked Mr. Wright if the sponsor is open to
going beyond just giving the standing committees the "power to
review" - that is, looking at the regulation and making an
evaluation.
MR. WRIGHT responded that the sponsor believes in the power of
the committee and the power of the committee chairs and
consequently, is open to anything the committees would like to
have done. His only concern that there not be a large fiscal
note attached to any potential amendments to the proposed
legislation.
REPRESENTATIVE KELLER advocated for considering the proposed
legislation in terms of preserving the role of the legislature
constitutionally. He opined that even though budget issues are
a concern, they shouldn't be the deciding factor.
MR. WRIGHT said the sponsor does not want to lessen the role of
the legislature in any of the processes that are available to
it.
8:19:04 AM
REPRESENTATIVE GRUENBERG reminded the committee of the amendment
to HB 126, Code of Military Justice, heard in yesterday's House
floor session, which said that when further regulations dealing
with the code of military justice are promulgated by the
National Guard, those regulations shall be sent to the
legislature for review.
MR. WRIGHT acknowledged that occurrence. He went on to say that
when he first saw the [mentioned] amendment, he had a few
concerns. The amendment did state that the legislature could
nullify regulations "by law," which means through statutory
action. He said that he did not want something passed that the
legislature couldn't achieve.
REPRESENTATIVE GRUENBERG asked if, in the event HB 229 passes
and the aforementioned amendment remains in the proposed
military legislation, any new regulation dealing with the code
of military justice would be referred to committee by the
commissioner of the Department of Military & Veterans' Affairs
(DMVA) or by the governor.
MR. WRIGHT replied that he did not know because he was not
familiar with that particular proposed military legislation.
REPRESENTATIVE GRUENBERG asserted that he was asking for
clarification on the process - that is, whether the commissioner
or the governor would refer the regulation to the appropriate
committee for review.
MR. WRIGHT responded that Representative Keller had been working
on an amendment to address procedural issues. He said that
since the lieutenant governor has the final say on all
regulations, his presumption is that the review of regulations
would be coordinated through the lieutenant governor's office
and would include referral to the speaker of the House and on to
the appropriate committees. He stated that he did not see the
committees becoming total regulation review committees because
of the time that has to be spent on legislation, budget, and
other issues, but that the committees would have the opportunity
to review the regulations if something seems onerous or
outdated. In that event the legislature or standing committee
has the ability to take action, which, Mr. Wright explained,
would be addressed in the Uniform Rules change resolution in the
proposed legislation.
8:22:46 AM
REPRESENTATIVE GRUENBERG expressed his hope that there would be
a mechanism for referring regulations to committees during
interim, emphasizing that there are many regulations and
committee activity during interim is limited. He also voiced
his concern regarding the additional work the proposed
legislation would create for committee staff during interim.
MR. WRIGHT added that committee chairs and committee members
would also be affected by the additional work, not just staff.
He suggested that regulations could informally be passed from
the Speaker's Office to the committee chair without referral,
and the chair could decide whether to bring a regulation to
committee for review. In regard to interim, Mr. Wright
maintained that the chair of any committee could call a meeting
at any time as long as it is properly noticed.
8:24:41 AM
REPRESENTATIVE VAZQUEZ said she thinks the role of the
legislature in reviewing regulations is absolutely critical, and
she supports the goal of the proposed legislation. However, she
went on to say, she is not convinced that what is proposed in
the bill is an appropriate alternative mechanism for regulation
review. She cited her past experience in administrative law in
which she observed that sometimes regulations usurp the intent
of legislation. She agreed that regulation review is an
important role and that standing committees possess special
knowledge to do such review. She contended that her concern is
in regard to the appropriateness of the mechanism as proposed.
MR. WRIGHT asserted that Representative Vazquez's comments
support his justification for the proposed legislation. Many
regulations are enacted because of legislation taken up by
committees who are familiar with the issues. Consequently these
committees are better able to make a determination as to whether
a regulation fits the scope of the legislation.
8:27:10 AM
REPRESENTATIVE VAZQUEZ expressed her discomfort with the
informal process described by Mr. Wright for regulation review.
She said that she supported a more systematic, statutory
mechanism that insures that every regulation is given attention
and not just the ones of special interest to certain committee
members.
MR. WRIGHT said that Representative Keller has some ideas to
address Ms. Vazquez's concern, and mentioned that a more formal
process could be inserted into HB 229.
8:28:40 AM
REPRESENTATIVE KELLER emphasized his appreciation for the
proposed legislation and stated his belief that HB 229
highlights unfulfilled legislative responsibilities, which has
been a great source of frustration to him. The legislature asks
the departments to write regulations in accordance with the
statutes that the legislature passes. Representative Keller
allowed that despite the best intentions, these regulations are
often difficult to trace back to the context of the statutes.
He added that administrative review lawyers are experts in code
not statute. He posited that the legislature tends to be weak
compared to the other two branches, and that this issue was one
of balance of power. He further opined that while the proposed
legislation cannot solve this concern, it may prevent more loss
of power.
REPRESENTATIVE KELLER contended that the Administrative
Regulation Review Committee is a very frustrating experience
even with qualified staff, and they have never once overruled
one regulation. He reiterated that the bill sponsor has now
discovered that the Alaska Supreme Court disallows [overruling
regulation] unless by new legislation. Agreeing with
Representative Vazquez's concern, Representative Keller conceded
that as it stands, the proposed legislation would be no more
effective in ensuring legislative review of regulations than
currently exists. He asked for the committee's help in coming
up with a process to enhance the legislative role in regulation
review. Representative Keller stated his belief that the only
way to ensure regulation review is to hire three or four
attorneys for that specific purpose.
8:31:26 AM
REPRESENTATIVE KELLER said that with the committee's patience,
he would work toward proposing amendments that would get rid of
a process that isn't working, as well as maintain the authority
of the legislature.
MR. WRIGHT expressed the sponsor's willingness to work with
committee members on amendments. He agreed with Representative
Keller's sentiments about regulations not following the intent
of legislation and related it to his experience with federal
regulations and laws that Congress passes, and the disconnect
between the two.
8:33:52 AM
REPRESENTATIVE KELLER stated his appreciation for Mr. Wright's
comment and cited issues that he had worked on in which state
regulations were nothing more than compliance to U.S.
regulations with no link to Alaska state law. He appealed for a
mechanism to evaluate regulations.
REPRESENTATIVE KELLER said that he had one amendment ready to
review. He asked the committee members for suggestions for
improvement, keeping in mind the sponsor's request that there be
no fiscal note.
8:36:13 AM
MR. WRIGHT offered that most of the committee members have
chaired a committee, and he requested that each member evaluate
how they would apply Representative Keller's amendment as a
committee chair.
8:37:40 AM
REPRESENTATIVE GRUENBERG said he would like to address the issue
from a legal standpoint. The problem, as Mr. Wright mentioned,
emanates from a controversy in the legislature in the 1980s
involving the Teamsters Union Local No. 959; a case in which the
Senator representing the Kenai Peninsula, Paul Fischer, took an
interest. The constitution will not allow the legislature to
amend or repeal a regulation unless by law, which means the
governor has the right to veto it. The controversy culminated
in the Alaska Supreme Court case, State v. A.L.I.V.E. Voluntary,
and as a result, the legislature twice passed constitutional
amendments that went before the voters to change the
constitution to allow the legislature to take action on a
regulation by resolution and twice the voters turned it down.
Representative Gruenberg stated his belief that the committee
should evaluate this case in terms of what the legislature can
legally do. He reiterated that the legislature cannot overturn
or amend a regulation once it is promulgated. He suggested,
however, the possibility of putting language in appropriate
legislation that would require regulations be submitted to the
legislature before they became effective.
8:41:10 AM
REPRESENTATIVE GRUENBERG emphasized that this is a
constitutional issue, but he suggested perhaps the issue could
be addressed in a creative manner without changing the
constitution.
8:41:21 AM
CHAIR LYNN asked if Representative Gruenberg was suggesting that
the legislature would have to give permission for the
administration to propose a regulation.
REPRESENTATIVE GRUENBERG replied that his suggestion was that
the legislature would have to allow the regulation, stop the
regulation, or review the regulation. He offered that he wanted
to find out what the options were.
CHAIR LYNN expressed his concern that this may be a never-ending
process.
REPRESENTATIVE GRUENBERG agreed that he wanted to avoid that
consequence.
8:41:52 AM
MR. WRIGHT claimed that the sponsor's goal is not to turn every
committee into a regulation review committee but to rely on the
power of the chair to determine which regulations to bring
before the committee for review, for possible reversal or
suspension.
8:42:52 AM
REPRESENTATIVE GRUENBERG maintained that his suggestion -
requiring regulations be submitted to the legislature before
becoming effective - may be a legal mechanism to achieve the
desire goal.
8:43:23 AM
CHAIR LYNN ascertained no one wished to testify.
8:43:32 AM
REPRESENTATIVE KELLER stated his belief that there is
considerable public interest in the proposed legislation. He
noted the lieutenant governor has no authority in context to
regulations but merely files them; and the legislature has the
right to challenge and annul regulations by statute unless doing
so violates a constitutional right.
MR. WRIGHT warned that the committee be concerned with
separation of power issues in regard to regulations and the
legislature.
8:45:25 AM
REPRESENTATIVE KELLER moved to adopt Amendment 1, [labeled 29-
LS1104\A.1, Gardner, 2/3/16], which read as follows [original
punctuation provided]:
Page 1, line 1:
Delete the second occurrence of "and"
Page 1, line 2, following "Committee":
Insert "; relating to the duration, review, and
extension of regulations; and providing for an
effective date"
Page 9, following line 9:
Insert a new bill section to read:
"* Sec. 22. AS 44.66 is amended by adding a new
section to read:
Article 2. Duration, Review, and Extension of
Regulations.
Sec. 44.66.100. Submission of regulations.
According to the schedule established by AS 44.66.110,
a state agency shall submit to the legislature for
review and possible annulment or repeal by the
legislature the regulations that have been adopted by
the state agency, including regulations adopted by a
state agency located in the state agency or a
predecessor of the state agency, and that are still in
effect at the time of the submission.
Sec. 44.66.110. Schedule for submission of
regulations. A state agency shall submit regulations
under AS 44.66.100 according to the following
schedule:
(1) if the state agency adopted the
regulations on or after January 3, 1959, and before
January 1, 1999, the state agency shall submit the
regulations within the first 10 days after the
convening of the Thirty-First Alaska State
Legislature;
(2) if the state agency adopted the
regulations on or after January 1, 1999, and before
July 1, 2009, the state agency shall submit the
regulations within the first 10 days after the
convening of the Thirty-Second Alaska State
Legislature;
(3) if the state agency adopted the
regulations on or after July 1, 2009, the state agency
shall submit the regulations within the first 10 days
after the convening of the Thirty-Third Alaska State
Legislature.
Sec. 44.66.120. Duration of regulations. (a)
Unless the regulation provides for earlier
termination, a regulation adopted on or after
January 1, 2017, terminates five years after the date
of adoption.
(b) Unless the regulation provides for earlier
termination, a regulation adopted on or after
January 1, 2017, must contain a statement that the
regulation terminates five years after the date of its
adoption unless the legislature extends the regulation
under this section.
(c) The legislature may extend a regulation
scheduled for termination under (a) of this section by
law. Each extension may not exceed five years.
Sec. 44.66.190. Definitions. In AS 44.66.100 -
44.66.190,
(1) "adopted" means filed by the lieutenant
governor under AS 44.62.080(a);
(2) "regulation" has the meaning given in
AS 44.62.640, but does not include an order of repeal;
in this paragraph, "order of repeal" has the meaning
given in AS 44.62.640;
(3) "state agency" means a department,
institution, board, commission, division, authority,
public corporation, or other administrative unit of
the executive branch of state government."
Renumber the following bill sections accordingly.
Page 9, following line 22:
Insert a new bill section to read:
"* Sec. 25. Section 22 of this Act takes effect
January 1, 2017."
8:45:41 AM
REPRESENTATIVE GRUENBERG objected for purpose of discussion.
[HB 229 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB0273P.PDF |
HSTA 2/4/2016 8:00:00 AM |
HB 273 |
| 02 HB273 Sponsor Statement.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 273 |
| 03 HB273 Sectional Analysis.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 273 |
| 04 HB 273 Fiscal Note DOA-Motor Vehicles 2-1-2016.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 273 |
| 01 HB0229A.PDF |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 02 HB229 Sponsor Statement.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 03 HB229 Sectional Analysis.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 04 HB229 Leg Research-Meetings.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 05 HB229 State v ALIVE Voluntary summary and headnotes.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 06 HB229 Statutes.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 07 HB229-LEG-COU-01-29-16.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 08 HB229 - Fiscal Note - DOL Civil 2-1-2016.pdf |
HSTA 2/4/2016 8:00:00 AM |
HB 229 |
| 01 HCR15A.PDF |
HSTA 2/4/2016 8:00:00 AM |
HCR 15 |
| 02 HCR15 Sponsor Statement.pdf |
HSTA 2/4/2016 8:00:00 AM |
HCR 15 |
| 03 HCR15 Uniform Rule 20.pdf |
HSTA 2/4/2016 8:00:00 AM |
HCR 15 |
| 04 HCR15-LEG-COU-02-01-16.pdf |
HSTA 2/4/2016 8:00:00 AM |
HCR 15 |