Legislature(2011 - 2012)CAPITOL 120

02/03/2012 01:00 PM House JUDICIARY


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01:01:50 PM Start
01:02:11 PM HB216
01:52:29 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 216 REGULATIONS: INFORMATIVE SUMMARY/BILLS TELECONFERENCED
Heard & Held
        HB 216 - REGULATIONS: INFORMATIVE SUMMARY/BILLS                                                                     
                                                                                                                                
1:02:11 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO  announced that the  only order of business  would be                                                               
HOUSE  BILL NO.  216,  "An  Act relating  to  deadlines in  bills                                                               
directing  the adoption  of regulations  and  to the  informative                                                               
summary required for the proposed  adoption, amendment, or repeal                                                               
of a regulation."   [Before the committee was  CSHB 216(STA), and                                                               
adopted as  the work  draft on 1/30/12  was a  proposed committee                                                               
substitute  (CS)  for  HB 216,  Version  27-LS0701\E,  Bannister,                                                               
1/28/12.)                                                                                                                       
                                                                                                                                
1:03:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE THOMPSON  moved to adopt a  new proposed committee                                                               
substitute  (CS)  for  HB 216,  Version  27-LS0701\T,  Bannister,                                                               
2/2/12,  as the  working  document.   There  being no  objection,                                                               
Version T was then before the committee.                                                                                        
                                                                                                                                
1:03:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PEGGY WILSON,  Alaska State  Legislature -  after                                                               
recapping  that  HB  216  is intended  to  ensure  that  proposed                                                               
regulatory changes  are completed  in a  timely manner,  and that                                                               
the associated notices are accompanied  by a brief description of                                                               
the proposed  changes written in clear,  easily-readable language                                                               
- relayed  that Version  T addresses  the concerns  raised during                                                               
HB 216's last hearing.   Specifically, Section 1  - now proposing                                                               
to  add new  subsections  (f) and  (g) to  AS  24.08.035 -  would                                                               
require  a deadline  to be  set in  a bill's  accompanying fiscal                                                               
notes,  rather than  in the  bill  itself, and  reporting to  the                                                               
Administrative  Regulation   Review  Committee  if   the  initial                                                               
deadline is  not met,  and lists specific  entities that  are not                                                               
exempt from  these requirements; Section  2 - still  proposing to                                                               
add a  new subsection (d) to  AS 44.62.200 - now  stipulates that                                                               
the  required  brief  description  must  accompany  the  notices,                                                               
rather than be  included in them, and now uses  the term, "cross-                                                               
referencing"  instead of  the phrase,  "following Internet  links                                                               
to"; and the  title has been changed to conform  with Section 1's                                                               
new focus on fiscal notes.                                                                                                      
                                                                                                                                
REPRESENTATIVE  P.  WILSON  relayed that  the  specific  entities                                                               
listed in Section  1's proposed subsection (g)  not exempted from                                                               
the  requirements  of  proposed  subsection (f)  are  the  Alaska                                                               
Housing  Finance   Corporation  (AHFC),  the   Alaska  Industrial                                                               
Development  and  Export  Authority (AIDEA),  the  Alaska  Public                                                               
Offices   Commission  (APOC),   and  the   Alaska  Oil   and  Gas                                                               
Conservation  Commission  (AOGCC).   She  mentioned  that she  is                                                               
still  willing to  consider adding  other such  entities to  that                                                               
list.   In conclusion, she  offered her  belief that HB  216 will                                                               
help  both  the  legislature  and the  public  better  understand                                                               
proposed   regulatory   changes,   particularly   in   terms   of                                                               
determining  whether  they  really  would  implement  legislative                                                               
intent.                                                                                                                         
                                                                                                                                
REPRESENTATIVE HOLMES relayed that  with the changes incorporated                                                               
into  Version T,  she now  agrees  with the  mandatory nature  of                                                               
Section 1's proposed subsection (f).                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that the public,  too, should be                                                               
informed  of   any  new  deadlines   and  the  reasons   for  the                                                               
anticipated  delay,  and recommended  that  that  issue be  given                                                               
further consideration.                                                                                                          
                                                                                                                                
1:12:46 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO  characterized the language  of Section  1's proposed                                                               
subsection  (g)  as  confusing because  it  stipulates  that  the                                                               
requirements  of subsection  (f)  would not  apply to  regulatory                                                               
changes  proposed  by  a  state board  or  commission,  but  then                                                               
specifically lists  certain entities that would  be excluded from                                                               
this exemption.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG concurred,  and, characterizing  HB 216                                                               
as a  good bill, remarked on  the importance of ensuring  that it                                                               
applies to all the entities that it should.                                                                                     
                                                                                                                                
REPRESENTATIVE  KELLER   expressed  support   for  HB   216,  but                                                               
questioned whether  the term, "the Alaska  Administrative Code" -                                                               
currently listed in Section 2  as something that a person without                                                               
a legal background  shouldn't have to cross-reference  - could be                                                               
replaced with  a more general  term, particularly given  that the                                                               
goal  is  to  provide  for   a  description  that  a  person  can                                                               
understand without  doing a lot  of research, not  necessarily to                                                               
ensure that a person won't have to do any research.                                                                             
                                                                                                                                
CHAIR GATTO concurred.                                                                                                          
                                                                                                                                
REPRESENTATIVE   GRUENBERG,   referring   to  the   language   in                                                               
Section 2's  proposed   subsection  (d)  that  would   limit  the                                                               
liability  of  a  state  agency  if  it  failed  to  comply  with                                                               
subsection  (d)'s  description requirements,  questioned  whether                                                               
that language  should be  amended to allow  for certain  kinds of                                                               
actions to  be brought,  such as  those that  could result  in an                                                               
agency   being   required   by   the   court   to   comply   with                                                               
subsection (d)'s requirements.   He  then suggested  that perhaps                                                               
the  Alaska  Redistricting Board  and  the  University of  Alaska                                                               
Board of Regents should be added  to Section 1's list of entities                                                               
that   would  not   be  excluded   from   Section  1's   proposed                                                               
deadline/reporting requirements.                                                                                                
                                                                                                                                
1:22:27 PM                                                                                                                    
                                                                                                                                
DEBORAH  BEHR,  Chief  Assistant  Attorney  General  -  Statewide                                                               
Section  Supervisor,  Legislation  & Regulations  Section,  Civil                                                               
Division  (Juneau),   Department  of  Law  (DOL),   referring  to                                                               
Section 1's  proposed  subsection (f)  and  the  issue of  people                                                               
wanting  regulations to  be  promulgated  more quickly,  remarked                                                               
that generally the  way to ensure that that occurs  is to provide                                                               
adequate funding and other resources  to those agencies that have                                                               
to  promulgate   regulations.    Furthermore,   because  agencies                                                               
generally  prepare  their  own  fiscal notes,  she  said  she  is                                                               
questioning   whether   Section   1   now   comports   with   the                                                               
legislature's intention  regarding which branch of  government is                                                               
to be  setting deadlines, and  if the  preference is to  have the                                                               
legislature  set them,  then the  committee should  also consider                                                               
how practical  it's going  to be for  the legislature  to fulfill                                                               
such a  duty during  a 90-day  session, though  currently nothing                                                               
precludes  the   legislature  from  setting  such   deadlines  in                                                               
proposed legislation.   Other  points to  consider are  that with                                                               
some  bills,   several  agencies   are  impacted,   and  proposed                                                               
subsection  (f) seems  to  imply  that for  any  given bill,  one                                                               
deadline  shall be  set for  all relevant  agencies; and  whether                                                               
agencies, instead of  setting and reporting a  new deadline, will                                                               
simply resort to pushing regulations  through the process just to                                                               
meet an initial deadline.                                                                                                       
                                                                                                                                
MS.  BEHR,  referring to  Section  1's  proposed subsection  (g),                                                               
relayed that she  would be willing to assist  in drafting clearer                                                               
language, but  noted that for  the most  part - perhaps  with one                                                               
exception, that  being the  APOC -  the specific  entities listed                                                               
therein as being  excluded from the proposed  exemption for state                                                               
boards and  commissions don't  engender complaints  regarding the                                                               
timeliness of  promulgated regulations.  Furthermore,  most state                                                               
boards  and commissions  don't have  the authority  to promulgate                                                               
regulations,  and whenever  specific  lists are  provided for  in                                                               
legislation/statute,  there are  the dangers  of missing  certain                                                               
items that should  be included and of those lists  not being kept                                                               
up to date.   She then characterized the language  in Section 2's                                                               
proposed subsection (d)  as improved - expressing  favor with the                                                               
prohibition on  bringing an  action based on  the failure  of the                                                               
brief  description  to comply  with  the  requirements set  forth                                                               
in (d) -  but suggested that  the sentence which  currently says,                                                               
"The  brief  description  shall   be  written  in  clear,  easily                                                               
readable language  that a  person without  a legal  background is                                                               
able   to  understand   without   cross-referencing  the   Alaska                                                               
Administrative  Code." should  be amended  by putting  the period                                                               
after  the word,  "understand" and  deleting the  words, "without                                                               
cross-referencing the Alaska Administrative Code".                                                                              
                                                                                                                                
REPRESENTATIVE  P. WILSON,  in  response  to comments,  clarified                                                               
that  it  is her  intention  for  agencies  to set  the  required                                                               
deadlines,  concurring that  it's  the  agencies themselves  that                                                               
would be  in a  better position  to know how  long it's  going to                                                               
take to promulgate the necessary regulations.                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG relayed  his  satisfaction, then,  with                                                               
the bill's current prohibition on  bringing actions, and with its                                                               
[new focus on] fiscal notes.                                                                                                    
                                                                                                                                
MS.   BEHR  offered   her  understanding   that  the   Office  of                                                               
Management & Budget  (OMB) has a  problem with HB  216's proposal                                                               
to use fiscal notes for setting policy.                                                                                         
                                                                                                                                
1:35:53 PM                                                                                                                    
                                                                                                                                
ARNOLD LIEBELT,  Policy Analyst,  Office of the  Director, Office                                                               
of Management &  Budget (OMB), Office of  the Governor, explained                                                               
that  fiscal   notes  have  always   and  only   been  considered                                                               
instruments  for  transmitting  to   the  legislative  branch  of                                                               
government the  estimated cost-impact  of proposed  legislation -                                                               
nothing else.   Version T of  HB 216 is proposing  to change this                                                               
by  requiring fiscal  notes to  include information  unrelated to                                                               
the cost-impact, and  this could open the  door to policy-setting                                                               
via fiscal notes.  Currently,  although not labeled separately as                                                               
such,  an   agency's  fiscal   note  pertaining   to  legislation                                                               
requiring  the promulgation  of regulations  already includes  an                                                               
estimate  of  the  costs  associated  with  that  promulgation  -                                                               
including  costs related  to  the estimated  length  of time  and                                                               
numbers of staff required for  the promulgation.  Furthermore, he                                                               
pointed out,  because fiscal notes  aren't binding,  any deadline                                                               
set  in  one  wouldn't  be   binding  either.    In  response  to                                                               
questions,  he  clarified that  the  concern  centers on  whether                                                               
fiscal  notes  -  since  they   are  meant  to  reflect  monetary                                                               
estimates -  are the appropriate  vehicle for  setting deadlines,                                                               
not  on  whether agencies  are  capable  of estimating  how  long                                                               
promulgating  regulations  might  take; again,  agencies  already                                                               
make such  estimates now, and  so could provide  that information                                                               
during committee hearings.                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out, though,  that only  those                                                               
who attend such  hearings would know whether  a time-estimate had                                                               
been  provided, and  offered his  belief, therefore,  that fiscal                                                               
notes  would indeed  be  the appropriate  vehicle  for setting  a                                                               
deadline, and  could simply be  revised as agencies get  a better                                                               
idea of how long the promulgation of regulations might take.                                                                    
                                                                                                                                
MS. BEHR, in  response to questions and  comments, explained that                                                               
the  notices  pertaining  to   proposed  regulatory  changes  are                                                               
generally produced by the agencies  themselves with limited legal                                                               
assistance  due to  DOL staffing  limitations; acknowledged  that                                                               
such notices could  perhaps be clearer, surmising  that Section 2                                                               
of the  bill is going to  be helpful in that  regard; and pointed                                                               
out  that the  prohibition in  Section 2  only addresses  actions                                                               
based on the failure of the  brief description to comply with the                                                               
requirements  set   forth  in  proposed  AS   44.62.200(d),  with                                                               
existing  law  already  protecting  the  public  [against  agency                                                               
noncompliance    with   statutory    direction   to    promulgate                                                               
regulations].                                                                                                                   
                                                                                                                                
REPRESENTATIVE KELLER  concurred with Ms. Behr's  point about the                                                               
proposed prohibition, and again expressed  favor with HB 216, but                                                               
commented on its seeming edentulous nature.                                                                                     
                                                                                                                                
1:49:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  1,                                                               
deleting  from  page  2,  line 16,  the  words,  "without  cross-                                                               
referencing  the Alaska  Administrative  Code".   There being  no                                                               
objection, Amendment 1 was adopted.                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG   questioned  whether  HB   216  should                                                               
provide for a specific effective date.                                                                                          
                                                                                                                                
MS. BEHR offered to research that issue.                                                                                        
                                                                                                                                
CHAIR GATTO relayed  that HB 216 [Version T as  amended] would be                                                               
held over.                                                                                                                      

Document Name Date/Time Subjects
HB216-E.pdf HJUD 2/3/2012 1:00:00 PM
HB 216
HB216 Draft CS 2-3-12.pdf HJUD 2/3/2012 1:00:00 PM
HB 216
Sponsor_HB216_Regulations.pdf HJUD 2/3/2012 1:00:00 PM
HB 216
HB 216 Support document AML.pdf HJUD 2/3/2012 1:00:00 PM
HB 216