Legislature(1995 - 1996)
02/01/1996 09:10 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HOUSE JOINT RESOLUTION NO. 1
Proposing an amendment to the Constitution of the
State of Alaska relating to repeal of regulations
by the legislature.
Co-chairman Halford directed that HJR 1 be brought on for
consideration. TED POPELY, aide to House Speaker Gail
Phillips, came before committee. He referenced the sponsor
statement (copy on file in the original Senate Finance
Committee file for HJR 1) and noted that, if placed on the
ballot, the resolution would provide voters an opportunity
to amend the state constitution to allow for legislative
repeal of administrative regulations, by joint resolution.
Repeal would apply to regulations that ignore or extend
beyond the scope of enabling legislation. Mr. Popely
acknowledged that the measure had been before the voters on
three previous occasions and had failed. However, a
significantly growing number of regulations which do not
fulfill the purpose and intent of legislation make it timely
once more.
JIM COLLARD, President, Juneau Chamber of Commerce, next
came before committee and voiced support for the resolution.
He said that regulatory compliance is often one of the
biggest costs of doing business. While many regulations
accurately implement both the letter and intent of law, many
go far beyond or appear to ignore intent. Regulations have
the force of law for businesses, and they are often
promulgated without public input. When agencies craft
regulations that depart from legislative instructions, the
agency becomes the lawmaker without having to answer to
voters. HJR 1 provides an effective tool by which to ensure
adherence to legislative intent and return the making of law
to the legislature.
PAM LaBOLLE, President, Alaska State Chamber of Commerce,
next spoke on behalf of the chamber's 700 member-businesses
which provide jobs to 70,000 employees. She said that
mission of the chamber is to create a climate conducive to a
strong private-sector economy. Mrs. LaBolle voiced support
for HJR 1, advising that reform of the present regulatory
system is second in priority to need to close the fiscal
gap. Referencing a chamber resolution in support of the
effort, she noted that the resolution asks the legislature
and administration to "provide for an effective oversight
mechanism to assure that regulations are producing effective
results that follow legislative intent." She cited
complaints regarding regulations that ignore or miss the
point of legislation. Presently, the only recourse is
passage of "corrective legislation." Since the governor can
veto that legislation, the current system allows the
executive branch to usurp the power of the legislature.
Throughout the legislative process, the public has
opportunity to provide input. The regulatory process is not
so open or receptive, and regulations are sometimes adopted
in spite of public sentiment.
Co-chairman Frank asked if the chamber would fund and
undertake a campaign to inform the public of the benefits of
HJR 1. He noted that because of lack of explanation and
understanding, prior votes on the issue were viewed as "a
power grab by the legislature." Mrs. LaBolle said that the
chamber is committed to utilization of its resources and
network of local chambers to educate and inform the public.
Both Co-chairman Frank and Senator Randy Phillips stressed
need for the educational effort to extend beyond chambers
and business groups to the public at large. Further
discussion of need for adequate funding of a public
awareness effort followed. Co-chairman Frank suggested that
a financial commitment from the business community similar
to the effort to close the fiscal gap should be devoted to
changing the regulatory process.
JIM BALDWIN, Assistant Attorney General, Governmental
Affairs Section, Dept. of Law, advised that HJR 1 would
dramatically changed the legislative process. He queried
members concerning specific regulations giving rise to
public complaint. He suggested that, as an institution, the
legislature should be concerned about "this sort of power."
As an example, he cited fish and game regulations and noted
that the board of fish and game was created in territorial
days and continued in statehood to place regulatory power in
the hands of experts. He questioned whether fishing
interests should come directly to the legislature to undo
regulations adopted by the board.
Mr. Baldwin further cited an earlier attempt by the
legislature to annul regulations by statute (AS 44.62.320)
and noted that the effort was ruled unconstitutional (State
v. A.L.I.V.E Voluntary). He stressed that regulations
involve more than just businesses. Senator Randy Phillips
noted that the supreme court ruling was three to two. The
question of unconstitutionality was thus not unanimous.
Senator Phillips directed attention to page 1, lines 6 and
7, and referenced language calling for repeal via joint
resolution. He then noted language at AS 44.62.320
requiring repeal by concurrent resolution and questioned
which form of resolution should be utilized. Co-chairman
Halford said that provisions in HJR 1 would supercede the
statute. He informed members that the effective difference
is "to elevate the kind of resolution to one requiring three
readings so that it does . . . get treated exactly as a bill
would."
As examples of overreaching regulations, Senator Sharp cited
the Forestry Practices Act which provides statutory review
to the Dept. of Fish and Game. Regulations, however, call
for both review and approval. Proposed air quality
regulations set standards that are technically impossible
for coal-fired power plants to achieve when, after routine
maintenance, they are refired from a cold start. Federal
law says that states are not to impose more stringent
requirements. Proposed state regulations do so. The
Senator further noted that past governors have overridden
board of fish and board of game decisions, and he cited the
False Pass fishery as an example, suggesting that politics
is more involved at the administrative than at the
legislative level. Mr. Baldwin stressed that the
legislature presently has the power to correct problem
regulations via statute. Senator Sharp noted that
corrective legislation is also subject to veto.
Co-chairman Frank voiced his belief that legislative repeal
would provide greater opportunity for public input into the
regulatory process. He suggested that such repeal would
result in only a slight rather than substantial shift in the
balance of power.
Senator Sharp noted that the legislature, rather than the
administration, is often mistakenly blamed for passage of
onerous regulations.
Senator Rieger referenced language at page 1, line 9, and
asked if it would permit retroactive or merely prospective
repeal. Mr. Baldwin informed members that the broad wording
could be construed to apply retroactively. He advised that
he would have to review the Administrative Procedures Act.
He then voiced his belief that "We're limited in regulations
with retroactive effect." Senator Rieger stressed that the
record should indicate that retroactive repeal is not
contemplated. Mr. Baldwin concurred that repeal power would
not apply to existing regulations.
Co-chairman Halford referenced a $2.2 fiscal note
accompanying the resolution and queried members concerning
disposition of HJR 1.
Senator Rieger indicated that conversation with staff of the
sponsor evidenced no objection to clarification of language
giving rise to concern regarding retroactive repeal. He
then formally MOVED to insert the word "prospective"
following the word "different" at page 1, line 9. That
would prevent ability to backtrack ten years and repeal a
regulation upon which businesses and individuals have relied
for a substantial period of time.
Discussion followed among members relating to the House
majority needed to approve Senate changes to HJR 1.
Senator Sharp voiced reluctance to place the resolution in
jeopardy by effecting a change. Co-chairmen Halford and
Frank concurred. Co-chairman Frank also noted need to keep
resolution language as simple as possible. Senator Sharp
suggested that a letter of intent might accomplish the same
end as the proposed amendment. Senator Rieger told members
that careful reading of the supreme court ruling on the
budget reserve fund evidences that regardless of intent
language or the wording of ballot propositions, the court
takes "the wording of the constitution on its face." That
overrides all else. The wording must thus be clear.
Co-chairman Halford voiced opposition to the proposed
amendment and called for a show of hands. The amendment was
ADOPTED on a vote of 4 to 3 (Senators Rieger, Phillips,
Donley, and Zharoff supported the amendment, and Co-chairmen
Halford and Frank and Senator Sharp were opposed).
End: SFC-96, #17, Side 1
Begin: SFC-96, #17, Side 2
Co-chairman Halford directed that the amendment be
incorporated within a Senate Finance Committee Substitute
for HJR 1. Senator Sharp MOVED that SCS HJR 1 (Finance)
pass from committee with individual recommendations and the
accompanying fiscal note. No objection having been raised,
SCS HJR 1 (Finance) was REPORTED OUT of committee with a
$2.2 fiscal note from the Office of the Governor/Elections.
Co-chairmen Halford and Frank and Senators Rieger, Phillips,
and Sharp signed the committee report with a "do pass"
recommendation. Senators Donley and Zharoff signed "no
recommendation."
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