Legislature(1999 - 2000)
02/02/2000 01:41 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SB 24 - REGULATIONS: ADOPTION & JUDICIAL REVIEW CHAIRMAN KOTT announced that the final item of business would be CS FOR SENATE BILL NO. 24(FIN) am, "An Act relating to regulations; amending Rule 65, Alaska Rules of Civil Procedure; and providing for an effective date." Number 1627 REPRESENTATIVE JAMES made a motion to adopt as a work draft the proposed committee substitute (CS) for SB 24, Version P [1- LS0274\P, Bannister, 1/26/00]. There being no objection, Version P was before the committee. Number 1642 SENATOR DAVE DONLEY, Alaska State Legislature, sponsor of SB 24, came forward to present the bill. [Although he mentioned a committee hearing towards the end of last year, there was no House hearing held on SB 24 in 1999.] Senator Donley told members that a series of meetings, over many months during the interim, had involved many sectors of the natural resource development industry and the Alaska State Chamber of Commerce. The result was Version P, which he believes to be a very good product. SENATOR DONLEY pointed out that Version P has been narrowed in focus to only apply to the Department of Environmental Conservation (DEC). He had tried to take all the things heard for years from the public about how regulations are too difficult and onerous, and had tried to work with the industry. This is a pilot program with just the DEC; if something doesn't work well, the entire system won't have been changed. However, if something does work well, then later that can be adopted and applied to other sectors of state government. Version P sets out new standards, worked out with the industry, that a regulation must meet before adoption. There are also additional procedural requirements before adopting regulations, including mailing notices that a proposed regulation is going to be changed, to people who have offered comments, and publishing information on the Internet. Some bills passed by the legislature have required adoption of regulations, Senator Donley said, which in one instance didn't occur for five or six years. This would give the DEC a fixed period of time to say "yes" or "no" as to whether they intend to adopt regulations. If the DEC moves ahead, Version P allows them a two-year window to do those regulations. Senator Donley told members: Now, we've tried to carefully craft this so that if something goes wrong, and they don't get it done in two year, it doesn't mean they can't. But we've put incentives and encouragement for them to get it done in two years in the legislation, such as at the 18-month period, if they haven't done it already, they're supposed to provide a report to the legislature saying why they haven't done it and ... what's the problem, what they intend to do, whether they're going to make their goal. So, we've tried to build incentives in without preventing the thing from happening in the end. Now, we've also built things in that keep it from being the subject of any litigation and things like that, which would also slow down the process. So, the intent that we've worked out here is a system by [which] we encourage the departments to get ... the regulations that are necessary adopted, and if they don't do it, at least we'll get information why they haven't done it, and they'll have to justify, in writing, why they haven't done it. So, that's a big feature that industry really likes. And also, of course, the bill still contains the requirement of supplemental notices to the public if the original intent of a regulation changes dramatically (indisc.--papers shuffling). We go through this committee process, Mr. Chairman, where every committee substitute's published; it's available at every step along through the committee process. But in the regulatory process today, unless they deem that there's a major change in some way, the public gets one notice, and then the thing comes out ... that has the force of law. With this, if there's a substantial change in what they originally published their notice to the public of, they have to go back out and give supplemental notice and warn the public: "Well, now we're going to do something different," ... because there may be people out there that need to know that, Mr. Chairman. So we think ... this particular CS is a really good step. It's a pilot program. And earlier today we had folks from the Alaska Miners Association in here, in support of it; by teleconference, also, from Alaska Forest Association. Sealaska, I believe, has submitted written testimony in support of it, and they were ... present earlier today also. And Pam LaBolle with the [Alaska State Chamber of Commerce] is still here. SENATOR DONLEY informed members that Hans Neidig could walk them through Version P section by section, if so desired. Number 1860 REPRESENTATIVE GREEN said he applauds the concept but has one question. He referred to page 5, lines 9 and 10, which read: "(2) the agency has made a good faith effort to adopt the regulations within the two-year period set out in (i) of this section." He asked whether the agency won't always say that they had made a good faith effort. He suggested that if an agency wants to adopt regulations, two years should be much more time than is needed. He questioned the necessity of having that in the bill, saying he thinks it undoes all the good the sponsor is trying to do. Number 1920 SENATOR DONLEY recalled its genesis from meetings that summer. He explained that there might be a good faith reason why it makes sense to wait a little longer; for example, the agency could be awaiting a court settlement or something from the federal government. He agreed that it probably is too broad, considering that there is no particular penalty for not doing it, other than needing to submit a report to the legislature. He indicated they had set it up that way to avoid frivolous litigation to block necessary economic development regulations. He said he would defer to the judgment of the committee and the folks from the industry about whether that should remain in there. REPRESENTATIVE GREEN noted that Pam LaBolle was signed up to testify. Number 1951 REPRESENTATIVE JAMES asked if there is a political or legislative penalty if they don't do it. She indicated a two-year time frame may persuade the agency to move a little faster. SENATOR DONLEY explained that he likes it because it gives the agency a goal, and he believes agency personnel take the statutes seriously. He believes two years is a reasonable period. However, there are legitimate times when maybe it can't be done in two years, for good reasons, which they had discussed last summer. If 18 months comes and the agency hasn't done regulations, they won't be happy about admitting that and putting down on paper why, in the report. Senator Donley agreed that if there is bad faith on the part of the bureaucracy, they can get away with an awful lot. However, he believes these are all positive, measured, reasonable steps that are worthy of trying as an experiment with a single department. Number 2074 REPRESENTATIVE KERTTULA asked why the DEC was chosen for this. SENATOR DONLEY explained that the bill began as a general provision. The Administration had suggested that one department be picked, however, and that it be done as a pilot program. He indicated the Senate had considered the Department of Natural Resources (DNR), the DEC, and two divisions of the Alaska Department of Fish and Game (ADF&G), including the Division of Habitat and Restoration and possibly the Division of Subsistence. Senator Donley pointed out that there are unique concerns with each department, and the public has specific concerns about different elements. Finally, through the committee process, they had narrowed it down to the DEC as one agency with which to give it a try. Number 2120 REPRESENTATIVE KERTTULA referred to page 2, Section 3 and expressed concern about how this would work. For example, would a person who thinks the regulation isn't valid or effective go to court or contact the agency? Noting the change in the burdens of proof, she said it is really complicated and she has never seen anything like that for a regulatory process. SENATOR DONLEY responded that this section was developed from many meetings over the summer, trying to come up with a system to prevent frivolous lawsuits that would tie up the regulatory process so industry couldn't proceed with needed regulations. At the same time, however, if a regulation really wasn't the intent of a statute, there would be a specific standard of how a court would examine that and overturn it. It places the burden of proof on the person challenging the regulation, so that it would be a clear test. It is what his working group came up with; it is an experiment, a try. If the department didn't respond, agree and modify it, a person could write a letter saying it doesn't comply with the intent of the statute; the department could then either reach a compromise or go to court. "If it did go to court, it would be their burden that the regulation was invalid under that section," he added. He suggested Section 3 serves as a clear statement that this is how the legislature wants its statutes interpreted, and it gives clearer guidance to the executive branch in interpreting the statutes, which he believes is very useful. Number 2238 REPRESENTATIVE KERTTULA pointed out that subparagraphs (1)(A) and (1)(B) are mutually exclusive under Section 3. She asked what happens if a statute requires a regulation but does impose a material capital or operating cost, and there isn't any significant public benefit. It could be a particular statute applying to a particular industry, she pointed out, and there may not be a significant public benefit across the board. Noting that there is an "or" in here, she asked, "Wouldn't you run the risk of having somebody being able to bring a suit against that regulation?" SENATOR DONLEY answered that there is a specific exception when it is required by a statute. REPRESENTATIVE KERTTULA said she wasn't reading it that way. Number 2275 HANS NEIDIG, Legislative Administrative Assistant to Senator Dave Donley, Alaska State Legislature, explained that the test and that language comes from Alaska's [Forest Practices] Act. Something similar to it already exists; it is not necessarily setting up a new standard that is out of the ordinary. The test established in subparagraph (1)(B) of Section 3 responds to a widely held perception that regulations and associated costs of compliance often impact private persons and/or industry without providing public benefits. Consequently, it made sense to provide a burden of proof for a person challenging the regulation - using the test provided in (1)(B) - that a preponderance of evidence exists in that person's favor. Mr. Neidig voiced his understanding that preponderance of the evidence is the existing standard used in most civil cases. Number 2314 REPRESENTATIVE KERTTULA thanked Mr. Neidig for pointing that out. After apparently checking the Forest Practices Act to see whether it says "significant public benefits" or just "public benefits," she announced that it is "significant." SENATOR DONLEY stated: The answer to your other question, Representative Kerttula, is that the existing law - in Section 2 of the bill - says when something's reasonably necessary to carry out the purpose of the statute, that's what they do. And so we've tried to maintain the specific provision that, obviously, if the statute says "you shall adopt regulations that do such and such," they're covered. I mean, that's what they've got to do. REPRESENTATIVE KERTTULA said she still has concerns. CHAIRMAN KOTT requested a brief review of the sections. He then noted that the committee had received a letter dated February 1, 2000, in support of SB 24, Version P, from the Alaska Miners Association. That letter contained a proposed amendment regarding the agency's effectiveness in posting regulations. Specifically, it recommended amending Section 4 to add a new subsection (l) after line 10, page 5, which would include the following concepts, taken verbatim from the letter: (1) the agency shall (1) within one year of the effective date of the final regulation make a written summary to the Legislative Committee having jurisdiction and the Sponsors of the enabling legislation, which (A) outlines the effectiveness of the final regulation in achieving it's the Legislative requirements and intent (B) outlines any issues that need administrative or Legislative solution to achieve more effective implementation, and (2) publish notice using the same requirements as set forth in Section 4(b) the written summary is available. CHAIRMAN KOTT asked whether Senator Donley had reviewed that proposed language. SENATOR DONLEY said yes, they'd just received the letter. He noted that they had worked with the miners over the summer, who had been helpful and had provided some really good suggestions. This one is new, and he is open to it. Senator Donley said his only concern is its possible fiscal impact because requiring another report would result in a fiscal note. TAPE 00-8, SIDE B Number 0001 CHAIRMAN KOTT commented that he personally thinks the fiscal application would be negligible, but he isn't the one providing the written summary to either the sponsor or the legislative committee having jurisdiction over it. SENATOR DONLEY said he'd be all for it, if it were negligible. REPRESENTATIVE JAMES remarked that in this bill, which only deals with the DEC, it might work. However, she herself gets a huge number of notices for changes in regulations. She believes there would be some fiscal impact from making another report, not that she disagrees with the need for it. She pointed out it would require immense cooperation between the agency and the legislature. That doesn't exist now, and she doesn't believe it is a natural existence. She believes it would be resisted and would cost a lot of money. Number 0062 CHAIRMAN KOTT recalled that when the legislature has done pilot programs, generally there is a clause in the legislation that repeals it after a certain time. If the law is effective, it is reestablished. However, if it isn't effective, it goes away and the legislature doesn't have to take action. He asked how long Senator Donley would foresee this having to be enacted before the legislature can determine its effectiveness. SENATOR DONLEY answered at least four to five years. It would take time for the bureaucracy and private industry to adjust. He would want to give it at least that long in order to have a sense of how it is functioning, if Chairman Kott is suggesting a sunset provision. He said he is pretty excited about this, and he believes it is a really good work product. Over the summer, they'd struggled with the idea of a cost-benefit analysis. Although people in the industry had asked for that for years, they finally concluded that it would be too costly and too difficult to do, and it might actually hamstring some things they want to accomplish in regulations. Therefore, that isn't in the bill. Senator Donley restated that this is a really good step. He suggested in two or three years legislators would want to actually expand it. Number 0149 CHRISTOPHER KENNEDY, Assistant Attorney General, Civil Division (Anchorage), Environmental Section, Department of Law, testified via teleconference from Anchorage. Indicating Janice Adair, Director, Division of Environmental Health, DEC, was unable to testify that day, he requested on her behalf that she be allowed to comment later. He referred to Version P of SB 24 and stated: While the bill has improved over previous versions, we continue to have a number of concerns. First of all, a housekeeping point, as, I think, Senator Donley covered. SB 24, as it's revised, applies special procedures only to DEC. Now, special administrative procedures applicable only to a single department are normally in place in the statutory title for that agency. And currently we already have on the books some special departures from the Administrative [Procedure] Act that apply only to DEC, and those are in Title 46. The main example is AS 46.35.090. Now that it's been narrowed to relate only to DEC, the main provisions of this bill ... in Sections 3 and 4 should be revised to go into Title 46, rather than Title 44. I heard the discussion of this being a pilot program that might last five years or so. Of course, if it were a successful pilot program and someone wanted to expand it 5 years from now, one could recodify [it] again, but five years is a long time to have a DEC statute stuck off in another title where people might miss it. Number 0239 Now I'll turn to the substance of the bill. And I'd like to look first at the standard of review - which has just been discussed - found in Section 3 of the bill. It completely replaces the current standard under which an agency's regulations are tested, and the current standard in [AS]44.62.030 is quite a firm standard. It says that regulations have to be consistent with the statutes and that they have to be reasonably necessary to carry out the purposes of the authorizing statute. This standard has been in place since 1959. It stood the test of time. The courts have decided dozens of changes based on it, and the legal community of both industry and government knows what it means. The new standard in SB 24 is entirely novel. It uses words like "thwarts" and "circumvents" that are new to the Alaska Statutes and not found in many other state statutes either. No one can predict how a court would interpret them. The SB 24 standard also inserts "courts" into a process of weighing costs and benefits. And here I'm talking about part (B) of the new standard of review, which is at lines 8 through 10 on page 2. Under SB 24, a court cannot uphold a regulation without finding that it yields ... "significant public benefits" to counterbalance any ... "material costs imposed on development activities". This gets the superior courts into weighing what is a benefit, what is a significant benefit, and what is a public benefit. Increasingly, unfortunately, courts in Alaska are coming to the realization that they're not equipped for that kind of role. The Alaska Supreme Court said in the recent Casio(ph) case that it doesn't want to ... get mired in questions of public policy as to regulations because ... that is beyond our authority and expertise. Number 0331 MR. KENNEDY continued: I'll give you an example of the kind of weighing that would be involved. DEC issues special regulations to provide particular industrial facilities with mixing zones that, as a practical matter, allow the industry to discharge more waste into the water than federal or state law would otherwise permit. And a user of the water body, such as an eco-tourism company, might challenge a regulation like that, alleging that it imposed costs on them because they have to travel farther to find a pristine tourist destination. Against that cost, the court would have to weigh the benefits of letting the industrial facility use the mixing zone. Then you would have the question of whether that is a public benefit or just a private benefit to the company that owns the facility. And some judges might even question whether it's a benefit at all. one knows how a court would rule, given this kind of language, and it introduces an uncertainty into the whole process and makes it hard for industry or anyone to know which regulations they can rely on and which are going to be snatched out from under them in some later litigation. There's another very troubling aspect in introducing a whole new standard for reviewing regulations. And to appreciate it, you have to look at Section 3 in conjunction with Section 5 on applicability. As it must, to avoid a host of other problems, this bill has been framed not to be retroactive. It applies to new regulatory action begun after July 1 of this year. The trouble comes because most of what DEC does with regulations is amend existing regulations, in order to make them clearer, or to respond to problems pointed out by the regulated community, or to respond to changing conditions or amendments to statutes. An amendment may only change, for example, the last three words of a sentence under one ... sentence of a regulation. Later, if that regulation is challenged, then ... you would be testing those three words under one standard of review and the other words of the regulation under another standard of review. And within a few years, the DEC regulations would be a hopeless patchwork ..., some covered by the old standard and some covered by the new test. It would be very hard to predict how a court ... would unravel that. Number 0458 MR. KENNEDY continued: While I'm on ... the subject of applicability in Section 5, I want to just talk for a moment about subsection (a) of the applicability provision. That section makes some provisions of the bill only apply to regulations if the statute giving authority for those regulations has an effective date after July 1 of 2000. The problem there is that many regulations draw authority from a combination of statutes that all have different effective dates. Also, do you go by the effective date of the first version of the statute, or do you go by the effective date of the most recent amendment of the statute, or do you engage in some sort of court inquiry as to how significant the latest statutory amendment was? I think both the agency and the court and industry would have a very difficult time knowing how to interpret this applicability provision. Let me just turn back, if I may, to Section 4, the other substantive provision of ... the draft. The first part of that relates to the public notice process for adopting regulations. I think that the rest of this ... is perhaps to make sure that the agency has a genuine dialogue with the public. The idea may be that if the draft set of regulations is out to the public, then it significantly revises the draft, it'd have to take a new round of public comment. First I should make a couple of technical points. In subsection (b)(1) of the new section [AS 44.62.]213, the bill would require DEC to mail notice to persons who have provided comment to DEC on the proposed adoption, amendment or repeal of a regulation. I think the intent here is probably to refer to those who have commented formally on a previously noticed draft of those regulations. But the language of the bill doesn't quite say that, and this requirement could be interpreted to invalidate a regulation just because the agency did not notify someone who had commented in some informal context at some time in the past. Also, and this is a minor concern, that the phrase "mail notice" should be changed to "furnish notice". As we move more and more to electronic commenting, the agency receives comments by e-mail and would want to respond and providing notice by e-mail to people who prefer that. That mechanism and the use of the word "mail" is usually going to be interpreted just as strictly U.S. mail. Number 0576 MR. KENNEDY continued: Moving on to subsection (c). This is a requirement that the agency developed in explanation of why its proposed regulation is not invalid under the new standard of review that I mentioned before. This is an invitation for lawyers to compose boilerplates. It's unlikely to produce any material genuinely informative to the general public, and whatever it does produce will have to be published, potentially at great cost, in the Alaska Administrative Journal. Next, I'd like to comment on the core subsection here, subsection (e), which requires a new round of public notice whenever the agency, in response to comments, has ... "substantially changed the substance of the draft regulation". The first concern is that this imposes an uncertain standard. Secondly, it slows down the process considerably, whereas industry and the public, in general, are often impatient for regulations to become final. Third, it's costly. And fourth, it may not be an effective way to accomplish what seems to be the goal of this provision. If the goal is to make sure the agency has a meaningful dialogue with commenters, the best solution might be to require the agency to prepare and furnish to commenters a response in the summary explaining why it accepted or rejected each comment. I understand some DEC divisions do this already, and it's a procedure that's been well received when it's been tried. I'd like to touch briefly on the exceptions to subsection (e). The exceptions are in ... subsection (g), which straddles pages 3 and 4 of the draft. The point to be made here is that these exceptions, other than number (1), are too vague to be of any real use to the agency. They talk about reducing burden. One person's burden is another person's benefit, and it will generally be difficult to tell if a regulation reduces burdens ... on society as a whole. ... I should comment briefly on ... subsection (h) through (k), which attempt to ensure that regulations are adopted, probably after the underlying statute is passed. These provisions suffer from similar concerns. ... They're vague. ... Even more of a problem is that the underlying assumption is that regulations will be based on a single statute that has a single effective date, ... which, as I mentioned previously, is frequently not the case, or most commonly is not the case. These provisions will be extremely hard to apply where regulations have multiple statutes behind them - all with different effective dates - and with multiple statutory amendments that often have different effective dates. Finally, while a delay in issuing regulations can be frustrating, these provisions are perhaps a little too blunt to address that. Often the need for regulations doesn't become apparent ... to anyone until there's been years of experience in attempting to implement the underlying statute; and it would be unfortunate to have a blanket two-year cutoff for regulations in those situations. Last of all, what I think is a technical fix: the last line of subsection (j), which was lines 30, 31, on page 4, states that a court may not hold a regulation invalid for failure to comply with "this subsection", which is part, but not all, of the two-year limit mechanism. If this line were changed to "failure to comply with subsection (h) through (j)", then the two- year limit would be something for DEC to strive for, and perhaps to be embarrassed if it failed to meet their goal, because we'd have to report to the legislature. But it would not be set in stone, and wouldn't hold out the threat of having regulatory reforms become impossible if it later became apparent that ... they were needed after the two-year period had gone by. Number 0798 CHAIRMAN KOTT thanked Mr. Kennedy and requested that he provide his comments in writing, if possible. MR. KENNEDY said he would be happy to do that. Number 0810 PAMELA LaBOLLE, President, Alaska State Chamber of Commerce, came forward, expressing pleasure at seeing the bill before the committee in its current form. She said fixing the regulatory process - deemed by her membership to be a problem for many years - has been a top priority of the state chamber for several years. She indicated Representative James has succeeded in some of her many efforts to make changes in the past. She said the legislature has recognized, for many years, that regulations are promulgated that don't meet legislative intent. Although originally the legislature had authority to repeal such regulations, she said, a court decision changed that. MS. LaBOLLE told the committee that she has never been involved in a piece of legislation that has had so many hearings and so much work put into it. Originally the bill encompassed several agencies, but it seemed logical to do a pilot project using one agency. The DEC was a cause of many of the problems, she said, and was probably the easiest one to try this on. Her organization feels this is very reasonable. It affects every regulation proposed after the time line begins, or every law that becomes effective as of July 2000. Ms. LaBolle said she doesn't concur with Mr. Kennedy's logic regarding how difficult this would be to put into force. Her organization believes this bill is a good first step. She disagrees that the system has worked well since 1959, and her organization is looking for a novel approach. They believe this pilot project is the way to handle it. Number 1031 CHAIRMAN KOTT thanked Ms. LaBolle, then stated his desire to hear from the DEC before taking any action. He asked whether Senator Donley was prepared to respond to Mr. Kennedy's comments now. SENATOR DONLEY replied that he would use his own license and try to summarize the arguments. First, the regulators say they are afraid this will hurt the industry, but the industry supports this. The regulators also say it will be difficult because it won't apply to all the laws; perhaps having it apply to all is a good idea that would solve the problem. He said the DEC should provide notice of changes to the people, whether they really want to or not. Furthermore, these time lines are basically advisory; this doesn't preclude moving ahead after two years. He suggested the agency doesn't want even guidelines, which would make their job easy, but it wouldn't be good for the public or the industry. Finally, Senator Donley believes it is clear that there isn't a two-year cutoff. He concluded, "We went through great lengths to ensure that even after the two years, they could continue to pursue and get the regulations in place." Number 1159 REPRESENTATIVE CROFT referred to the end of subsection (j), the bottom of page 4, which read: "Notwithstanding AS 44.62.300, a court may not hold a regulation invalid for failure to comply with this subsection." He pointed out that (i) says a state agency may not take more than two years to adopt regulations unless the state agency complies with (j). He agreed with Senator Donley that it makes a guideline that should be retained. He asked, however, whether it shouldn't say (h), (i) and (j). SENATOR DONLEY explained that the intent there, which he believes is clear, is that the agency gets out from having to do it within two years if they do the report required by (j). If they don't do the report, they must do the regulation within two years. "I guess you could suppose that they just - out of arrogance - refuse to file the report, even though they have a legal duty to do so," he added, "and then bring down on themselves the two-year limit." He said he wouldn't mind at all if it were expanded there, if it satisfies that concern. REPRESENTATIVE CROFT said he wasn't trying to change the sponsor's intent, but he can't quite understand all the loops that this entails. CHAIRMAN KOTT asked Senator Donley about the comment relating to the mailing of notices on page 2. [Mr. Kennedy had proposed changing "mail notice" to "furnish notice."] SENATOR DONLEY answered that he had no problem with that change. Pointing out the provision for publication of notice on the Internet below that, he indicated the desire to give flexibility in order to save on costs. Number 1326 REPRESENTATIVE JAMES referred to Mr. Kennedy's concern about a minimal change to a regulation after the effective date, and subsequent action by a court because there would be two different rules to follow. She asked Senator Donley to respond. SENATOR DONLEY answered that if it is a real concern of the department, he would be happy to entertain a proposal from them to clarify it one way or the other. He then suggested it should be simple: "If a regulation is updated or changed, the new standard applies to it." In response to a question, he restated that he doesn't have a problem with a "sunset" after at least four or five years. CHAIRMAN KOTT emphasized that if there is a sunset provision and the program is working, it will force the legislature to come back and expand it to other departments. But if it isn't working, then the legislature doesn't have to do anything. He believes the sunset clause is somewhat important. Number 1577 REPRESENTATIVE CROFT brought attention to the different burdens of proof. He requested confirmation that the provision on significant benefits to public resources has been part of the Forest Practices Act since 1990. SENATOR DONLEY asked whether Representative Croft was talking about page 2, lines 8 through 10. REPRESENTATIVE CROFT affirmed that. SENATOR DONLEY clarified that that was a suggestion that came out of the industry working group that past summer. REPRESENTATIVE CROFT pointed out that a court would make the determination of "significant public benefits," which had seemed odd to him at first. He asked whether there is any case law on that issue under the Forest Practices Act. Number 1675 RICHARD HARRIS, Senior Vice President, Natural Resources, Sealaska Corporation, came forward. [Mr. Harris had provided written testimony in support of SB 24, Version P, on behalf of Sealaska Corporation and the Alaska Forest Association.] In reply to Representative Croft's question, he answered no. Since 1990, he indicated, one additional revision to the Forest Practices Act was passed by this legislature one or two years ago. He elaborated: This guideline and standard actually helped us as we went through and determined what should be the changes to the Act - you know, what was the science, and what was the technical data that was available to us to support additional buffer standards on riparian and non-anadromous streams? And this standard actually became kind of a guiding principle that we used, as we went forward in revising that. ... That amendment to the Act passed unanimously by both houses of the Alaska legislature, unamended. We were able to work that process outside the legislature process, but with all the interest groups. And it became, as I say, a very good guideline for us to work from. And it was a test, as we went back and said, "Does this change make sense? And how does it ... work against this standard?" And out of that, then, we were able to all reach agreements, ... to the extent that the environmental community, the fishing community all came and supported that bill. So, we haven't had to test it in court, but it has been a useful guideline for us as we've gone forward. Number 1771 REPRESENTATIVE CROFT suggested the careful negotiation might explain why there has been no litigation. Pointing out how unusual it is for a court to measure the significance of the benefits to the public, he wondered what standard the court would use. SENATOR DONLEY said one reason they had worked so hard on the burden of proof section was to give the court more guidance in how to interpret that, and to say "that if somebody wants to overturn, based on that standard, they're going to have to bring back the evidence to convince the court." REPRESENTATIVE CROFT responded, "A lower burden than they would have saying it doesn't meet the statutory intent." Number 1855 CHAIRMAN KOTT asked whether there were further questions, then announced that the bill would be brought up the following week. [SB 24 was held over.]
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