Legislature(1999 - 2000)
04/10/2000 01:28 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 24-REGULATIONS: ADOPTION & JUDICIAL REVIEW CHAIRMAN KOTT announced that the next order 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." REPRESENTATIVE JAMES moved to adopt the proposed committee substitute (CS), version LS0274\L, Bannister, 4/7/00, as the working document before the committee. There being no objection, it was so ordered and Version L was before the committee. Number 1822 SENATOR DAVE DONLEY, Alaska State Legislature, testified as the sponsor of SB 24. He explained that version L streamlines the notification process to take into consideration the advances of the Internet and allow abbreviated public notices with the maximum information available to the public through other technologies. He noted that Sections 1-4 were in the original bill and haven't been changed. He informed the committee that the only changes encompassed in version L is the deletion of what were Sections 3-5 and any references to those sections. Therefore, the references to standards, burdens and cost benefit are not included in version L. What is left is the supplemental motives provisions, which have been significantly streamlined. SENATOR DONLEY pointed out that it is a five-year pilot program that would apply to the Department of Environmental Conservation (DEC). He clarified that the department would be required to notify the public when the department intends to adopt or substantially change a regulation. Additionally, this pilot program establishes a two-year window in which agencies should adopt regulations. He noted that currently there is no guideline for that. There would also be a 90-day window to specify whether they intend to adopt regulations. If for some reason they fail to adopt regulations within the two years, a report must be filed explaining why the regulations couldn't be adopted in the two years. Senator Donley specified that the intent is not to stop the adoption of regulations, but rather to encourage adoption of regulations in a timely manner. REPRESENTATIVE JAMES inquired as to how this deals with the state agencies when they don't want to do it. SENATOR DONLEY stated that this will be the first time that there is a fixed guideline of two years to [adopt regulations]. If the intent is to encourage state agencies to complete the process, the penalty is the problem in that penalties, in general, negate what has been performed. Therefore, all that is requested when the process is not completed in two years is a written explanation as to why. Senator Donley related his belief that the Department of Law takes these guidelines seriously. REPRESENTATIVE JAMES referred to Section 5, which speaks to the proposed adoption amendment or repeal published in the Alaska Administrative Journal. She recalled that [legislation] went through that said that was not going to occur anymore. She asked if it is going to still be referred to as the Alaska Administrative Journal even when on the Internet. HANS NEIDIG, Staff to Senator Dave Donley, Alaska State Legislature, surmised that Representative James was referring to Senator Leman's amendment that has been incorporated in several bills moving through the legislature. He specified, "This CS still has Senator Leman's amendment that was added on to this in earlier versions ... and it would take on that subsequent language and be noticed under the auspices of that piece of legislation [for] this other sections of this bill." SENATOR DONLEY informed the committee that Pam LaBolle is present and the Alaska State Chamber supports this legislation. He said that he believes all of the concerns of the various groups have been worked out. Although there is not much left of this legislation, what is left is good. REPRESENTATIVE KERTTULA inquired as to why this only speaks to DEC. SENATOR DONLEY pointed out that at the beginning, the bill was broader in scope. However, the Administration recommended narrowing the scope to one agency or one department in order to experiment with these changes. Number 2128 JANICE ADAIR, Director, Division of Environmental Health, Department of Environmental Conservation, testified via teleconference from Anchorage. She began by thanking Senator Donley and his staff for the changes they made to SB 24 as it is a significant improvement from earlier versions. She believes that Sections 2 and 5 [incorporate] Senator Leman's amendment, which has been vehemently opposed by the newspaper industry. She said, "Frankly, we don't want to force something on them that they're not ready to accept. We'd rather keep working with them on a mutually agreeable solution to have public notice more meaningful." MS. ADAIR turned to the continuous renotice of the regulations whenever there are changes made. She interpreted the bill to say that notice only has to be sent to those who have previously commented. However, the department feels that it would be preferable to have a single round of renotice rather than something that could potentially be never-ending. Ms. Adair then turned to the five-year trial period, which she calculated to refer to the first year of a new legislature. However, she felt that it might be better to be the second year of the legislature as those members may be more able to make an educated decision regarding whether this pilot project should be expanded or continued. The first year of a legislature can mean a lot of new people in office, who don't have the experience to understand this experiment. Number 2268 REPRESENTATIVE JAMES mentioned the portion of Ms. Adair's testimony regarding not having so many responses from the public. Representative James said that she hears the public say that they give their testimony or suggestions and then they never hear back. Therefore, she felt that notice to people who have participated in the process is very important if the public is ever to gain confidence in this system. MS. ADAIR agreed. She pointed out that it is for that reason that DEC does responsiveness summaries. Anyone who comments on a regulation that DEC proposes receives a responsiveness summary, which summarizes the comments that were received and explains what was done in relation to those responses. She agreed that if people can take the time to write and tell us what they think about a proposal, then the least the department can do is provide the aforementioned response. However, responsiveness summaries are different than what is proposed in SB 24. She explained that per SB 24 anytime there is a change made as a result of a public comment, the department sends out another notice and there is another comment period. Although the two may be complimentary, they are very different. The renotice can delay the final adoption of a regulation, which is frustrating to people as well. REPRESENTATIVE JAMES said she understood the concern; she was thinking of specific regulations, regulations with such drastic changes that a comment [period] was almost necessary again. If this, as a pilot program, is done and the subject is not very controversial, the department could probably "short circuit it." However, if it is controversial, Representative James felt those steps are important. MS. ADAIR noted that internally DEC has discussed some fundamental changes to the Administrative Procedure Act. One of those changes would be the ability to talk with those people who have commented in order to discuss with the person how specific language changes would affect their concerns. However, the way the Administrative Procedures Act was written does not allow such. REPRESENTATIVE JAMES remarked that she understands that frustration; however, she also understands why that rule exists. MS. ADAIR concurred. Number 2433 SENATOR DONLEY spoke to the renoticing portion of the bill. He explained that SB 24 only requires renoticing when there is a substantial change, a change such that those who received the original notice would not understand or know what changes were made. He surmised that once there have been a couple of substantial changes, the changes should become more fine-tuning and not substantial. The bill provides that if an agency feels that the change is not substantial, then the agency performs a report, which is made available [to the public], explaining why the agency doesn't feel it was a substantial change. He stressed that if there is a substantial change, he would like the public to know and have the opportunity to comment. CHAIRMAN KOTT inquired as to Senator Donley's thoughts regarding the five-year provision. SENATOR DONLEY answered that he didn't feel strongly about that provision; however, he didn't believe the experimental time period should be less than five years because some of the provisions won't even begin to take effect [until then]. TAPE 00-55, SIDE B CHAIRMAN KOTT commented that he would think the desire would be to keep it an even number. REPRESENTATIVE JAMES stated that she didn't totally agree with Ms. Adair's remarks that there may be new [legislators] who don't know what to do. Although she can review her time with the legislature and see what she has learned, she also knows that she can be persuaded by other [legislators] as opposed to folks at home. Number 0025 CHAIRMAN KOTT referred to Sections 2 and 5, which deal with the newspaper notice. He asked if this was added at the sponsor's request. SENATOR DONLEY clarified that [that language] was added by this committee the last time this bill was before the committee. He pointed out that Senator Leman had brought over an amendment, which the committee chose to incorporate in SB 24. CHAIRMAN KOTT recalled that something very similar [to these provisions] was attempted in the House Rules Committee on another matter. That amendment was rejected in the House Rules Committee. Chairman Kott related his belief that [the language in Sections 2 and 5] jeopardizes the passage of the bill. Chairman Kott informed the committee that he would be inclined to delete those two sections. SENATOR DONLEY said, in response to Representative Croft, that he didn't mind the deletion of those sections. Number 0160 REPRESENTATIVE CROFT moved that the committee adopt Amendment 1, which would delete Sections 2 and 5 of Version L. REPRESENTATIVE ROKEBERG objected, but then withdrew his objection. CHAIRMAN KOTT announced, then, that Amendment 1 was adopted and thus Sections 2 and 5 would be deleted. REPRESENTATIVE CROFT recalled that there was a proposal being considered regarding whether Sections 8 and 9 of this Act should take effect July 2005 or 2006. He inquired as to Senator Donley's opinion on that. SENATOR DONLEY reiterated that he didn't feel strongly on that proposal, but would not go less than five years because there needs to be time to determine how the [experiment] is going. He said that he didn't have a problem with changing it to six years. CHAIRMAN KOTT surmised that Ms. Adair was suggesting it would be better [for Sections 8 and 9 to take effect] in the second year of a legislature. He said he agreed with Representative James on this matter. Number 0221 REPRESENTATIVE ROKEBERG moved to report HCS CSSB 24, version LS0274\L, Bannister, 4/7/00, as amended out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, it was so ordered and HCS CSSB 24(JUD) was reported from the House Judiciary Standing Committee.
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