Legislature(2001 - 2002)

04/02/2001 01:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 158 - CRITERIA FOR REGULATIONS                                                                                             
                                                                                                                                
Number 0807                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  announced that the  next order of  business would                                                               
be HOUSE BILL  NO. 158, "An Act relating to  the criteria for the                                                               
adoption  of  regulations  and  to  the  relationship  between  a                                                               
regulation  and  its  enabling  statute;  and  providing  for  an                                                               
effective date."                                                                                                                
                                                                                                                                
Number 0791                                                                                                                     
                                                                                                                                
REPRESENTATIVE LESIL McGUIRE,  Alaska State Legislature, sponsor,                                                               
suggested that  the committee hear  testimony on HB 158  and then                                                               
hold  it over  the  interim so  that  various concerns  regarding                                                               
unintended  results  could  be addressed.    She  explained  that                                                               
nationwide  review of  rules and  regulations began  back in  the                                                               
1930s and  reached a peak  in the  1970s when government  at both                                                               
the  federal  and  state levels  began  to  grow  astronomically.                                                               
Alaska was a territory, and  thus the powers among the executive,                                                               
legislative,  and  judicial  branches  were  conceived  a  little                                                               
differently; at  that point  in time, folks  wanted to  make sure                                                               
that the governor had the  ability to represent the state's views                                                               
in a  high-powered fashion,  so the  executive branch  was vested                                                               
with  stronger powers  than the  average  state executive  branch                                                               
would have been.  At that  point in time, there was skepticism of                                                               
the legislature.   Later down  the line, Alaska followed  a trend                                                               
evidenced  in a  lot  of  other states  of  putting  a couple  of                                                               
different safeguards into  its statutory framework.   One was the                                                               
creation of a  regulation review committee, and the  second was a                                                               
statute that  would allow the  legislature, through  a concurrent                                                               
resolution,  to  repeal  any  regulations that  it  found  to  be                                                               
inconsistent with legislative intent.                                                                                           
                                                                                                                                
REPRESENTATIVE  McGUIRE went  on  to explain  that  in 1980,  the                                                               
Alaska Supreme  Court -  in the  A.L.I.V.E. Voluntary  decision -                                                             
ruled that [this statute] was  unconstitutional on the basis that                                                               
it did  not comply  with the  presentment requirement  because it                                                               
essentially  allowed other  statutes  to be  amended without  the                                                               
changes  first being  presented to  the governor  in the  regular                                                               
fashion.  She added that there  were 11 other states at that time                                                               
with similar  provisions, and therefore  Alaska was not  alone in                                                               
its feelings of frustration over the issue.                                                                                     
                                                                                                                                
REPRESENTATIVE  McGUIRE  also  explained that  the  U.S.  Supreme                                                               
Court  - in  INS v.  Chadha -  ruled that  the veto  power was  a                                                             
violation  of powers  on the  federal level;  although that  case                                                               
didn't have a direct impact on  Alaska, she added, the result was                                                               
clear, and in  the years that followed INS v.  Chadha, nine other                                                             
states with  a similar provision  had it  ruled unconstitutional.                                                               
In two  states - Idaho and  New Hampshire - their  supreme courts                                                               
upheld the  power to  veto by  resolution; their  basic reasoning                                                               
was that  the separation of  powers in those states  charges only                                                               
the legislative branch  with the power to make  laws, while their                                                               
executive branches  have only  the power  to execute  those laws,                                                               
and  that these  two  branches of  government  were distinct  and                                                               
different.   A  further  aspect  of their  rulings  is that  they                                                               
determined that  rules from administrative agencies  actually had                                                               
a lesser  power -  a lesser effect  - than the  laws made  by the                                                               
legislatures.  Therefore, in Idaho  and New Hampshire the ability                                                               
to  repeal  by  resolution  is  alive and  well,  and  was  ruled                                                               
perfectly constitutional by their courts.                                                                                       
                                                                                                                                
Number 0521                                                                                                                     
                                                                                                                                
REPRESENTATIVE McGUIRE  said that in  the nine other  states that                                                               
had their  laws regarding veto  by resolution overturned,  all of                                                               
them,  with  the  exception  of Kansas,  have  taken  some  other                                                               
remedial step in  response.  In a brief overview  of the remedial                                                               
steps the other  states took, she explained  that in Connecticut,                                                               
the voters  - via the  state constitution - gave  the legislature                                                               
the ability  to veto  by regulation (in  Alaska, this  option has                                                               
been  twice rejected  by the  voters).   In  West Virginia,  they                                                               
created a system  whereby state agencies don't have  the power to                                                               
promulgate   rules  without   first   submitting   them  to   the                                                               
legislature (she noted that this is  similar to the concept in HB
158 in that  the burden of proof comes  through the legislature).                                                               
She also  explained that in  West Virginia, after  submitting the                                                               
proposed regulations to the legislature,  the legislature in turn                                                               
must enact a  statute that authorizes the regulations  to go into                                                               
law.  She  recounted that Michigan is doing  something similar to                                                               
what  is proposed  in HB  158 in  that if  the regulation  review                                                               
committee - which Alaska already has  - disapproves of a rule, it                                                               
cannot go  into effect unless there  is a two-thirds vote  by the                                                               
legislature.  She added that  Michigan, via the regulation review                                                               
committee, has  powers to  suspend any  rule during  the interim,                                                               
and  the rule/regulation  would then  have  to come  up for  full                                                               
review  during the  regular legislative  session.   She explained                                                               
that  in   Kentucky,  any  regulation   that  comes   before  the                                                               
regulation review committee and is  found to be deficient will go                                                               
into effect,  but only  until the start  of the  next legislative                                                               
session, and thus has a "shelf-life" of one year.                                                                               
                                                                                                                                
REPRESENTATIVE McGUIRE  remarked that Alaska  is one of  the very                                                               
few states  that has done  nothing to put  some sort of  check on                                                               
the [administrative]  agencies' ability  to interpret  state laws                                                               
and  make  additional laws  via  regulation.   And  although  she                                                               
acknowledged that  the agencies  have done a  good job,  she said                                                               
she  thinks  that  the  situation  in  Alaska  borders  on  being                                                               
unconstitutional.    The legislature  is  the  body charged  with                                                               
making laws,  and although that  authority can be  delegated, she                                                               
added  that she  thinks it  was anticipated  that this  authority                                                               
would  be  narrowly  delegated,  and that  there  would  be  some                                                               
overview, or check, on the agencies' power.                                                                                     
                                                                                                                                
REPRESENTATIVE McGUIRE noted that  other states are experimenting                                                               
with  the concept  of "sunsetting"  whereby  regulations go  into                                                               
effect without  any input  from the  legislature but  they expire                                                               
every  two  years.   Some  states  require "pre-submission,"  she                                                               
added, with a vote of the  legislature before adoption.  She also                                                               
noted that many other states  have a regulation review committee,                                                               
as  Alaska does,  but the  difference is  that the  committees in                                                               
these  other states  actually  have the  power  to do  something.                                                               
Alaska's  Joint  Committee  on Administrative  Regulation  Review                                                               
[which she chairs] "has no  power to do anything," she explained,                                                               
and according to  a legal opinion, "for all  intents and purposes                                                               
is  nonexistent."    Alaska's  regulation  review  committee  can                                                               
comment  on regulations  and review  them, but  "it really  means                                                               
nothing," she said.                                                                                                             
                                                                                                                                
REPRESENTATIVE  McGUIRE, with  regard  to the  other states  that                                                               
have regulation  review committees that  do have the power  to do                                                               
something,  noted that  in  some states,  the  committee has  the                                                               
ability to void  a regulation; in many states,  the committee has                                                               
the ability  to block adoption  pending review; in  other states,                                                               
the committee sends  the regulation over to  the actual committee                                                               
that has subject-matter jurisdiction in  order that it may review                                                               
the regulation;  and in a lot  of states there is  the ability to                                                               
object  formally to  a regulation  and thus  transfer the  burden                                                               
back to the agency.                                                                                                             
                                                                                                                                
REPRESENTATIVE  McGUIRE,  in  sum,  said  that  Alaska  has  done                                                               
nothing  since  the  A.L.I.V.E.   Voluntary  decision;  in  fact,                                                             
existing  statute  makes reference  to  an  annulment power  that                                                               
Alaska no longer  has.  Alaska has made  attempts, throughout the                                                               
years,  she  explained, to  get  a  constitutional power  on  the                                                               
ballot, but  those attempts  have failed.   She added  that there                                                               
have been attempts  on the part of some legislators  to get pilot                                                               
programs into place that would  allow for more public comment and                                                               
response, but  those attempts also  have failed.   Sunsetting has                                                               
failed,  as  has any  attempt  to  create  a  real power  in  the                                                               
regulation review committee.                                                                                                    
                                                                                                                                
Number 0166                                                                                                                     
                                                                                                                                
REPRESENTATIVE McGUIRE, with regard to  the question of "where do                                                               
we go from here," suggested that  "we need to go somewhere."  She                                                               
said  that she  has  had numerous  people come  to  her office  -                                                               
ranging from  administrative folks  to people  in industry  - who                                                               
have expressed likes  for certain aspects of HB  158 and dislikes                                                               
for other aspects of  it.  She opined that no  one she has talked                                                               
with disagrees with the fact  that something probably needs to be                                                               
done.   She  expressed  a willingness  to work  on  the issue  of                                                               
restoring  a   balance  with   regard  to   regulations,  whether                                                               
something can be  accomplished over the interim or  over the next                                                               
couple of years.  She said, for the record:                                                                                     
                                                                                                                                
     The reason why I introduced  this, and the reason why I                                                                    
     think it's  important that we have  something in place,                                                                    
     is for  the public;  the public has  the right  and the                                                                    
     ability  to elect  their  legislative  officials -  the                                                                    
     people who make laws - and  what we have done is (in my                                                                    
     opinion)  negligently  allowed administrative  agencies                                                                    
     to make  laws, proliferate  ... [regulations]  that the                                                                    
     public feels they have no  control over.  They might be                                                                    
     a small  businessman or [business]woman  who [dislikes]                                                                    
     the [regulation];  they can  comment during  the public                                                                    
     process.  But  what happens if the  agency doesn't like                                                                    
     their  public comment?   Well,  really,  nothing.   So,                                                                    
     they come to  us, as their elected  officials, and they                                                                    
     ask for us  to do something; but the  political will is                                                                    
     very strong.                                                                                                               
                                                                                                                                
REPRESENTATIVE  McGUIRE recounted  the following  case in  point.                                                               
Just this year,  the regulation review committee had  a case that                                                               
dealt  with "on-bottom  mariculture."   The committee  received a                                                               
lot of public  comment from folks who felt as  if their views, in                                                               
many cases,  were not even  listened to by the  Alaska Department                                                               
of Fish and  Game (ADF&G).  The very next  morning the lieutenant                                                               
governor signed the proposed regulations into law.                                                                              
                                                                                                                                
TAPE 01-53, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE  McGUIRE continued  by saying  that regardless  of                                                               
whether she disagreed  with the regulations, what  she had wanted                                                               
to  do was  give  the public  an opportunity  to  comment on  the                                                               
proposed regulations.   Currently, the public is  left with being                                                               
required to present  their views "to the very  governor who hires                                                               
the very  commissioners who promulgate the  very regulations that                                                               
they disagree with"; she opined  that this doesn't make very much                                                               
sense.   She  offered that  HB  158 may  have some  unanticipated                                                               
consequences,  and  that  she certainly  didn't  wish  to  create                                                               
further  problems.   She  said  that  her  goal  is to  help  the                                                               
hardworking men and  women of Alaska, not to hurt  them, and that                                                               
she hopes  to get something in  place that will allow  the public                                                               
to have a greater say and  that will restore the law-making power                                                               
to the legislature, at least somewhat more so.                                                                                  
                                                                                                                                
REPRESENTATIVE JAMES commented that  she understood the sponsor's                                                               
frustration, and she pointed out  that a simple solution would be                                                               
that  when the  legislature creates  a  statute, if  it wants  an                                                               
agency to  write regulations,  it must  specifically state  so in                                                               
that particular  statute.   In this  way, the  onus is  placed on                                                               
[the  legislature]  to  make statutes  specific  with  regard  to                                                               
regulations.                                                                                                                    
                                                                                                                                
CHAIR  ROKEBERG suggested  that the  regulation review  committee                                                               
review  the  Administrative  Procedure   Act  (APA)  itself,  and                                                               
possibly look at  making changes within it to  ensure more public                                                               
input.  He  also suggested that if private  industry will support                                                               
it,  [the legislature]  could  again  introduce a  constitutional                                                               
amendment that would  nullify the A.L.I.V.E. Voluntary  case.  He                                                             
noted, however, that money would have  to be spent to educate the                                                               
public  on  the   separation  of  powers  issue   and  that  [the                                                               
legislature] has lost power and is  not simply "trying to grab it                                                               
back, if you will."                                                                                                             
                                                                                                                                
Number 0220                                                                                                                     
                                                                                                                                
DEBORAH  BEHR,   Assistant  Attorney  General,   Legislation  and                                                               
Regulations Section,  Civil Division (Juneau), Department  of Law                                                               
(DOL), explained  that she has  been providing this  function for                                                               
DOL for about ten years, and  that she would be delighted to work                                                               
with the sponsor  and any committee that wants to  go forward and                                                               
look at  the regulations process;  it is  a very complex  area of                                                               
law that  can result in  a lot  of unintended consequences  and a                                                               
lot of fiscal  notes.  She noted that there  were some aspects of                                                               
the APA  that would be very  interesting to look at,  such as how                                                               
to deal with the Internet and  how it interfaces with getting the                                                               
information across to  the public; she offered  that the statutes                                                               
currently don't really cover that issue well.                                                                                   
                                                                                                                                
MS. BEHR noted that a couple  of years ago she and Representative                                                               
James  had worked  on the  issue of  negotiated rule  making, and                                                               
although there  have been  some responses  back on  that subject,                                                               
it, too, "could use some fine-tuning."   She said she agrees with                                                               
the  sponsor that  HB 158  has unintended  consequences, but  she                                                               
offered to hold those comments at  this time since HB 158 will be                                                               
reviewed during the  interim.  She said if  the committee wished,                                                               
she would  be willing to  provide a  "101" on regulations  at the                                                               
committee's  pleasure.    She  again   noted  that  although  the                                                               
administration does not  care for HB 158, she  would be delighted                                                               
to work on issues to improve the administrative process.                                                                        
                                                                                                                                
Number 0357                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL  made  a  motion to  adopt  the  proposed                                                               
committee  substitute  (CS)  for  HB  158,  version  22-LS0578\F,                                                               
Bannister, 3/26/01, as  a work draft.  There  being no objection,                                                               
Version F was before the committee.                                                                                             
                                                                                                                                
CHAIR  ROKEBERG noted  that the  committee  has received  written                                                               
testimony from Stanley  T. Foo of the  Alaska Miners Association,                                                               
Inc.; Tadd Owens of the  Resource Development Council for Alaska,                                                               
Inc.; [and Judith  Brady of the Alaska Oil  and Gas Association].                                                               
He also  noted that  Charlotte McCabe  had concerns  regarding HB
158 but wished to hold her comments for the time being.                                                                         
                                                                                                                                
Number 0518                                                                                                                     
                                                                                                                                
ROBERT B.  STILES, President, Resource Development  Council (RDC)                                                               
for  Alaska,  Inc., testified  via  teleconference  and gave  two                                                               
examples of  problems with  HB 158.   First, it  certainly throws                                                               
into doubt the ability of the  agency to use things such as site-                                                               
specific criteria, particularly  if it is not  allowed within the                                                               
individual   statutes  authorizing   the  program   where  that's                                                               
applied.   And for a  second example,  he said that  it certainly                                                               
throws  into question  the  state's  primacy regarding  federally                                                               
mandated programs  such as  the surface coal  mining program  - a                                                               
program that is  changing constantly.  He offered that  it is not                                                               
unusual to  have to  change the  regulations within  that program                                                               
once or twice a  year, and under HB 158 as  drafted, all of those                                                               
regulations  - some  200 pages  of  them -  would have  to be  in                                                               
statute in order  to be in compliance with  HB 158; additionally,                                                               
any  changes to  those regulations  would  have to  occur at  the                                                               
legislative level.  He said  he suspected that the legislature is                                                               
not  terribly interested  in writing  regulations,  which HB  158                                                               
would require.                                                                                                                  
                                                                                                                                
Number 0681                                                                                                                     
                                                                                                                                
JANICE  ADAIR,   Director,  Division  of   Environmental  Health,                                                               
Department  of Environmental  Conservation  (DEC), testified  via                                                               
teleconference and said  in response to questions that  if HB 158                                                               
were to  pass, the  DEC would  not be  able to  use site-specific                                                               
criteria   would  not   be  allowed   in   the  promulgation   of                                                               
regulations.   She acknowledged that currently,  for example, the                                                               
DEC could make a regulation  that allowed for the discharge water                                                               
to be no dirtier or cleaner than the receiving water.                                                                           
                                                                                                                                
Number 0704                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  announced that the  public hearing on HB  158 was                                                               
closed, and that HB 158 would be held over.                                                                                     

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