Legislature(1997 - 1998)
04/29/1998 01:30 PM Senate JUD
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* first hearing in first committee of referral
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CSHJR 2(JUD) - REPEAL OF REGULATIONS BY LEGISLATURE
REPRESENTATIVE NORMAN ROKEBERG, prime sponsor, testified that HJR
2 places the issue of allowing the legislature to repeal
regulations by resolution before the voters. He said this
particular issue was brought about by the A.L.I.V.E. decision in
1980. He said given the fact there's between 9,500 - 10,000 pages
of regulations currently on the books, there's a number of business
groups who have expressed a willingness to back this issue and help
support it financially to educate the voters to support the
rebalancing and the equilibrium of the separation of powers in the
state. He urged the committee to support HJR 2.
CHAIRMAN TAYLOR requested anyone else wishing to testify on this
resolution do so at this time.
JACK CHENOWETH, Assistant Attorney General, Legislation &
Regulations Section, Civil Division, Department of Law, stated the
Administration is opposed to HJR 2. It is his understanding the
bill being considered by this committee is the original HJR 2, not
the committee substitute. He noted the committee substitute
differed from the original bill in that it added language on lines
6-7, "after finding that a regulation is inconsistent with its
enabling statute" which he said appeared to open up the possibility
that focus will be given to what renders the regulation in
question, not worthy of being continued or open to annulment or
open to repeal. The record reflects, however, the House passed the
original version of HJR 2 not the committee substitute offered by
the House Judiciary Committee. He said be that as it may, the
Administration suggests this is not a resolution that should go
forward at this time.
MR. CHENOWETH informed committee members he had noted several
objections in a letter to the House Finance Committee. First, is
the ability under current law for the legislature to amend a
statute to clarify content. He understands that most of the
arguments against regulations go to the question of whether a
regulation adequately reflects legislative intent in the statute
that it's interpreting. At the current time, the legislature can
go back and clarify the statute if it determines the regulation is
not consistent with legislative intent. Secondly, the proposal
that a regulation be annulled by resolution changes the weight of
the checks and balances between the Legislative and the Executive
Branches. The legislature would be able to step in and set aside
the effect of a regulation simply by passing a resolution which
could be not vetoed by the Executive Branch. It appears to him
that repeal or annulling a regulation does not provide policy
guidance as to what the content of the regulation should be.
Finally, the vote in the three previous general elections indicates
the public prefers the current status on checks and balances and
would rather see the legislature give more thought to the way in
which it crafts statutes to supersede regulations, rather than
simply saying "no."
Number 0124
SENATOR DRUE PEARCE referred to a letter in committee packets from
the Alaska Airmen's Association regarding regulations promulgated
by the Department of Transportation that prohibit a person from
constructing or reconstructing a private air facility within two
miles of the proposed highway, without the written approval of the
commissioner. To her knowledge there is no law in existence that
gives the department any basis for that regulation. She agrees
that regulations should have the force of law, but she asked Mr.
Chenoweth for his thoughts on what should be done in those cases
where regulations are promulgated that have nothing to do with the
law passed by the legislature.
MR. CHENOWETH said he was not familiar with that specific
regulation, but perhaps the department had assumed that it was a
requirement that somehow attached to the commissioner's
responsibilities under federal law. In other words, the agency
adopts a regulation because it believes there's some federal
requirement that necessitates they to do so.
SENATOR PEARCE asked if state departments automatically promulgate
regulations based on federal law without any statutory authority?
MR. CHENOWETH responded that departments should not; there should
be some statute that at least states the commissioner needs to have
the authority to adopt regulations relating to the placement or
construction of airports that is consistent with the specific
federal statutes. With regard to the specific regulation cited by
Senator Pearce, Mr. Chenoweth assumed the legislature could simply
introduce a bill which specifies the commissioner may not do
whatever function is outlined in the regulation.
SENATOR PEARCE asked why a super majority of the legislature should
be required to get rid of a regulation written by a state agency
for which there have no statutory basis to do so.
MR. CHENOWETH countered that a super majority is not required;
Senator Pearce was presuming the Governor would veto enactment of
these kinds.
SENATOR PEARCE said she presumed regulations are signed off by
someone in the Administration and the Governor agrees with them.
MR. CHENOWETH said that was not a good presumption. The person
signing off on the regulations, more often than not, doesn't know
if the Governor agrees or disagrees with 90 percent of them. There
is an obligation however, to ensure the regulation has "a good
grounding" in the statutes.
SENATOR PEARCE stated, "I see no reason why we should have to go
chase this thing around in circles and have to get a two-thirds
majority in order to get rid of a law that he says becomes a law
just because they write a regulation."
MR. CHENOWETH explained it's because an agency is being asked to
interpret or implement a statute in which the legislature has given
the agency the authority to do so. He said it's his responsibility
to determine if a state statute exists that says in general terms
the state agency is required to conform to federal law.
CHAIRMAN TAYLOR said he believed Mr. Chenoweth is correct in that
almost every department has generic authorization for the
commissioner. If the public isn't willing to grant the legislature
the authority to change regulations by resolution, perhaps the
legislature should conduct a review of the code and carefully
restrict the powers of the commissioners and departments.
PAM LABOLLE, President, Alaska State Chamber of Commerce, testified
in support of HJR 2. She said the State Chamber of Commerce has
supported the many efforts to restore the legislature's ability to
repeal regulations that don't mirror the intent of the legislature.
It is the position of the State Chamber of Commerce that rules for
carrying out the laws adopted by the legislature should be in
concert with the intent of the legislation.
DICK BISHOP, Vice President, Alaska Outdoor Council, stated the
Alaska Outdoor Council appreciates the legislature's frustration
with regulations that are not consistent with enabling statutes.
There is, however, one area in which the Alaska Outdoor Council
believes that additional time for review of regulations prior to
publication could result in a considerable public service;
specifically, the regulations relating to fish and game matters
made by the Boards of Fisheries and Game. He noted the regulations
undergo extensive public review before, during and after adoption
which results in a close call for getting those regulations
published by July 1 in time for the hunting and fishing seasons.
Admittedly, he didn't understand how the system would work, but if
a period of time existed between the adoption of the regulations by
the boards and the due date of the regulatory year, it could work
to the disadvantage of the public. He recommended there be an
amendment to exempt the Boards of Fisheries and Game because of the
extensive and lengthy public process.
SENATOR SEAN PARNELL asked Representative Rokeberg to explain the
difference between the original version and the committee
substitute.
REPRESENTATIVE ROKEBERG said the language in Version E was better
because it was simpler. It is his belief the language added by the
House Judiciary Committee would give rise to the potentiality for
the Executive Branch to seek shelter from the Judiciary Branch if
there was a resolution passed by the legislature to (indisc.)
inconsistent. He added, "I thought the use of the word
'inconsistent' is problematic as to interpretation about whether a
statute is inconsistent or not - I thought it would create doubt or
cloud the issue and make the ability of the legislature to act
unclear. That is the reason I recommended those words be removed
and returned to the other language."
CHAIRMAN TAYLOR asked if there was further discussion.
SENATOR MIKE MILLER made a motion to move HJR 2 from committee with
individual recommendations.
SENATOR JOHNNY ELLIS objected.
CHAIRMAN TAYLOR asked for a roll call vote. Senators Taylor,
Pearce, Miller and Parnell voted in favor of moving the bill.
Senator Ellis voted against it. Therefore, HJR 2 moved from the
Senate Judiciary Committee by a vote of 4-1.
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