Legislature(1999 - 2000)
03/07/2000 03:07 PM House RLS
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 315-ONLINE SYSTEM REPLACES AK ADMIN JOURNAL CHAIRMAN COWDERY announced that the first order of business before the committee would be HOUSE BILL NO. 315, "An Act relating to elimination of the Alaska Administrative Journal and instituting public notice requirements on the Alaska Online Public Notice System; amending public notice publication requirements for certain regulations; and providing for an effective date." Number 0140 ANNETTE KREITZER, Staff to Senator Leman, Alaska State Legislature, informed the committee that the purpose of coming before the committee today was to offer a possible amendment labeled GH2007\A.1, Bannister, 2/16/00, which reads as follows: Page 1, lines 1 - 4: Delete all material and insert: ""An Act relating to the giving of certain state agency notices; relating to the elimination of the Alaska Administrative Journal and to the establishment of the Alaska Online Public Notice System for the giving of certain notices; and providing for an effective date."" Page 2, following line 12: Insert new bill sections to read: "* Sec. 3. AS 44.19 is amended by adding a new section to read: Sec. 44.19.021. Powers of the lieutenant governor. (a) To promote public awareness and in the best interests of the state, the lieutenant governor, under the provisions of AS 36.30, may provide for the availability of consolidated space in newspapers of general circulation and in trade and industry publications for the publication of notices regarding state agency regulations as required by AS 44.62.010 - 44.62.290. The lieutenant governor may require state agencies to participate in the use of consolidated space provided under this section and may waive the requirement if nonparticipation is in the best interests of the state. (b) In this section, "state agency" means a department, board, commission, division, authority, public corporation, or other administrative unit of the executive branch of state government. * Sec. 4. AS 44.62.120 is amended to read: Sec. 44.62.120. Voluntary submitting and publication. With the approval of the lieutenant governor, a state agency may submit to the lieutenant governor for filing a regulation or order of repeal of a regulation not required by AS 44.62.040 to be submitted. If the lieutenant governor accepts the regulation or order of repeal, the lieutenant governor shall endorse and file it as required in AS 44.62.080, and may provide notice of [PUBLISH] the regulation or order of repeal in the manner the lieutenant governor considers proper." Renumber the following bill sections accordingly. Page 3, line 24, through page 4, line 26: Delete all material and insert:(a) At least 30 days before the adoption, amendment, or repeal of a regulation, notice of the proposed action shall be (1) published in the newspaper of general circulation or trade or industry publication that the state agency prescribes and posted on [IN] the Alaska Online Public Notice System [ALASKA ADMINISTRATIVE JOURNAL]; in the discretion of the state agency giving the notice, the requirement of publication in a newspaper or trade or industry publication may be satisfied by using a combination of publication and broadcasting; [WHEN BROADCASTING THE NOTICE, AN AGENCY MAY USE AN ABBREVIATED FORM OF THE NOTICE IF THE BROADCAST PROVIDES THE NAME AND DATE OF THE NEWSPAPER OR TRADE OR INDUSTRY JOURNAL WHERE THE FULL TEXT OF THE NOTICE CAN BE FOUND;] (2) furnished [MAILED] to every person who has filed a request for notice of proposed action with the state agency; (3) if the agency is within a department, furnished [MAILED OR DELIVERED ] to the commissioner of the department; (4) when appropriate in the judgment of the agency, (A) furnished [MAILED] to a person or group of persons who [WHOM] the agency believes is interested in the proposed action; and (B) provided [PUBLISHED] in the additional form and manner the state agency prescribes; (5) furnished to the Department of Law together with a copy of the proposed regulation, amendment, or order of repeal for the department's use in preparing the opinion required after adoption and before filing by AS 44.62.060; (6) furnished to all incumbent State of Alaska legislators and the Legislative Affairs Agency; (7) furnished to the standing committee of each house of the legislature having legislative jurisdiction over the subject matter treated by the regulation under the Uniform Rules of the Alaska State Legislature, together with a copy of the proposed regulation, amendment, or order of repeal for the committee's use in conducting the review authorized by AS 24.05.182; (8) furnished to the staff of the Administrative Regulation Review Committee, together with a copy of the proposed regulation, amendment, or order of repeal and, if preparation of an appropriation increase estimate is required by AS 44.62.195, a copy of the estimate. * Sec. 7. AS 44.62.190(c) is amended to read: (c) The failure to furnish [MAIL] notice to a person as provided in this section does not invalidate an action taken by an agency under AS 44.62.180 - 44.62.290. * Sec. 8. AS 44.62.200(a) is amended to read: (a) The notice of proposed adoption, amendment, or repeal of a regulation that is published under AS 44.62.175 on the Alaska Online Public Notice System or is provided under AS 44.62.190(a)(2) - (8) must include the information described in (1) - (7) of this subsection. The notice that is published in a newspaper of general circulation or trade or industry publication or that is broadcast must include the information described in (1), (4), and (6) of this subsection. The information that must be provided according to requirements set out in this subsection is (1) a statement of the time, place, and nature of proceedings for adoption, amendment, or repeal of the regulation; (2) reference to the authority under which the regulation is proposed and a reference to the particular code section or other provisions of law that are being implemented, interpreted, or made specific; (3) an informative summary of the proposed subject of agency action; (4) other matters prescribed by a statute applicable to the specific agency or to the specific regulation or class of regulations; (5) a summary of the fiscal information required to be prepared under AS 44.62.195; (6) a brief general description of the proposed subject of agency action, how more detailed information may be obtained, and the name of the agency contact person; (7) the reason for the proposed action, the initial cost to the state agency of implementation, the estimated annual costs to the state agency of implementation, the name of the contact person for the state agency, and the origin of the proposed action." Renumber the following bill sections accordingly. Page 5, following line 23: Insert a new bill section to read: "* Sec. 12. AS 44.62.190(d) is repealed." Renumber the following bill sections accordingly. MS. KREITZER explained that the amendment would allow the lieutenant governor to use abbreviated public notices in newspapers. Ms. Kreitzer provided the committee with examples of abbreviated public notices. She commented that agencies can save a lot of money by doing abbreviated public notices. The amendment would clearly specify what has to be in the abbreviated notice while leaving the lieutenant governor the flexibility to allow agencies to use a larger notice format if necessary. Number 0300 MS. KREITZER reviewed the sectional analysis of the amendment included in the committee packet. She explained that the amendment would change the title of the bill. The amendment would also, in Section 3, allow the lieutenant governor to use abbreviated printed notices. Section 4 amends the Administrative Procedures Act in order to allow the lieutenant governor to provide Internet notice of regulations. This change in Section 4 conforms with the rest of the bill and allows for abbreviated, printed notices which direct interested parties to more detailed Internet notices. Ms. Kreitzer acknowledged that there is some misperception about the amendment in that [some believe] it would take away all newspaper advertisement, which is not the case. The amendment allows for newspaper advertisement. MS. KREITZER continued with the sectional analysis of the amendment and referred to the portion of the amendment that affects page 3, line 24 through page 4, line 26. That portion merely recognizes the advances in technology by changing the word "mailed" to "furnished." The word "furnish" would allow one the flexibility to furnish notice through the Internet or the mail. Furthermore, the change of the word "published" to "provided" would still allow one the ability to provide [the notice] by publishing it. The language used in the law would merely be broadened. MS. KREITZER continued by referring to the portion of the amendment which addresses Section 7. Section 7 conforms to Article 4 of the Administrative Procedure Act. Here again, the word "mail" is replaced with the word "furnish." Section 7(c) is in reference to the failure to "furnish" notice. Section 8 amends the contents of public notices. This is the section which the lieutenant governor would review in order to instruct the departments with regard to what should be included in the abbreviated notices. The abbreviated notices would include the following: (1) a statement of the time, place, and nature of proceedings for adoption, amendment, or repeal of the regulation; (current law) (2) other matters prescribed by a statute applicable to the specific agency or to the specific regulation or class of regulations; (current law) (3) a brief general description of the proposed subject of agency action, how more detailed information may be obtained, and the name of the agency contact person. (new language) MS. KREITZER pointed out that Section 12 is repealed by the amendment. Therefore, AS 44.62.200(a)(7) replaces AS 44.62.190(d). She clarified that AS 44.62.200(a)(7) is AS 44.62.190(d). She further clarified that the language AS 44.62.190(d) is encompassed in AS 44.62.200(a)(7) of the amendment. Number 0567 REPRESENTATIVE PHILLIPS noted that there is a lot of concern by the publishers of the printed record that this amendment would do away with the ability for newspapers to be able to sell advertisements in order to have a printed record. She referred to the title change encompassed in the amendment and expressed concern with the word "giving". She was not sure that the word "giving" means that published notices in magazines and so forth could continue. MS. KREITZER said that she was not sure why the word "giving" was chosen by the drafter. She did not believe it would be problematic to use the word "providing" or another word so long as the intent remains. REPRESENTATIVE PHILLIPS pointed out that it would be consistent with the language in the amendment if the word "giving" was changed to the word "publication." Representative Phillips so moved that as an amendment to the amendment. REPRESENTATIVE PORTER commented that the word "publication" would certainly limit it. He then pointed out that in the sectional analysis of the amendment it says, in reference to the changes on page 3, line 24 through page 4, line 26, that "It deletes reference to a broadcast notice providing the name and date of the publications where the full text of a public notice can be found. If left in law, this section would defeat the purpose of abbreviating public notices in newspapers or journals and allowing for the increasing use of Internet capabilities." He inquired as to why providing it [public notices] via broadcast media would defeat the purpose of providing it in newspapers. MS. KREITZER deferred to the Lieutenant Governor's office, which may have a more ready answer. CO-CHAIRMAN COWDERY asked if there was any opposition to the amendment to the amendment. There being none, the amendment to the amendment was adopted. Number 0816 JOHN LINDBACK, Chief of Staff, Office of the Lieutenant Governor, commented that HB 315 as introduced is a very simple bill. The Alaska Administrative Journal has become a "creature of the past." The subscribership of the journal has dropped from over 100, when Lieutenant Governor Ulmer took office, to nine because the information is now available on the Internet. A new system, the Online Public Notice System, was implemented last year and has been very successful and popular. He indicated that it would be a good idea for it to be a statutory requirement for agencies to put their notices in the Online Public Notice System. MR. LINDBACK informed the committee that "we" [the Office of the Lieutenant Governor] believe that the amendments proposed today are problematic for the bill. These amendments are problematic because the newspaper industry opposes it. This is known because the Governor proposed these provisions in a bill in 1997 and the newspaper industry hated it. He indicated that the newspaper industry was so successful in opposing the 1997 bill that it did not even receive a hearing. Mr. Lindback said, "We don't want to see what is a very simple and necessary thing such as making online notices a statutory requirement be killed by placing this amendment on this bill. And we think that is what's going to happen." MR. LINDBACK related his belief that there is a way for agencies to abbreviate their notices without this amendment, which the Department of Transportation (DOT) has proven. The Department of Transportation cleaned up its public notices that are printed in the legal ads and saved a substantial amount of money; all without changing the statute. He noted that other agencies could and should follow suit. Mr. Lindback said, "We think that work needs to be done with the newspaper industry to come up with amendments that they feel comfortable with before this legislation will be successful." Number 1010 REPRESENTATIVE PORTER restated his question with regard to whether the original bill deleted the possibility of using broadcast media for these notices. MR. LINDBACK commented that the subject of broadcast notices is fairly recent. The legislature passed a bill in the early 1990s, which allowed for the substitution of newspaper notice with broadcast notice under certain conditions. For example, if there was a hearing scheduled on a fish and game matter in rural Alaska where there is no newspaper, those provisions [included in the legislation passed in the early 1990s] would allow public notice on the radio in that particular community. There are many public notices that are only applicable to rural Alaska; however, these notices are being published in urban newspapers because there is no other place to do so. Mr. Lindback did not remember the old bill doing that. However, Deborah Behr, Assistant Attorney General in the Legislation & Regulations Section of the Department of Law, compared the proposed amendment with the one from 1997. Ms. Behr did not see any substantive difference between the two. REPRESENTATIVE PORTER asked Mr. Lindback if the bill that was filed altered the broadcast media provision. MR. LINDBACK said that he did not think so. He recognized that the agencies would like that flexibility to, under certain limited circumstances, substitute a broadcast notice for the requirement for a published notice. Number 1138 MS. KREITZER said, in answer to Representative Porter's question, that it does not do away with broadcast media. She pointed out that the text being deleted by the amendment reads as follows: "[WHEN BROADCASTING THE NOTICE, AN AGENCY MAY USE AN ABBREVIATED FORM OF THE NOTICE IF THE BROADCAST PROVIDES THE NAME AND DATE OF THE NEWSPAPER OR TRADE OR INDUSTRY JOURNAL WHERE THE FULL TEXT OF THE NOTICE CAN BE FOUND;]". That language is being deleted because there will no longer be full text of the notice. There is no impact on the broadcast media and it was in the original bill. REPRESENTATIVE BERKOWITZ recalled that DOT was used as an example of an agency that made changes [to their public notices] without statutory change. MR. LINDBACK explained that DOT merely did a better job of writing its legal notices and saved a lot of money. In further response to Representative Brice, Mr. Lindback believes that some other agencies may be attempting to do the same. Mr. Lindback recalled that the newspaper industry had opposed this by making an argument that by eliminating some of the requirements of what must be included in an advertisement, the public would not receive as much information as it would without changing the statute. Mr. Lindback agreed. At the time, it was argued (in rebuttal) that the public does not see the legal notices anyway because they are in the back of the paper. Therefore, it was felt that more prominent advertising of regulations was appropriate. The [newspaper industry] could not be convinced of that. Therefore, it was not included in this bill because "we" [the Office of the Lieutenant Governor] did not want to fight that battle this year. Number 1241 REPRESENTATIVE BERKOWITZ inquired as to why Senator Leman is championing this amendment. Furthermore, the Senate could have done a title change with a two-thirds vote. What is the problem? MS. KREITZER specified that Senator Leman is still championing this [amendment] because it has not been done without statutory change. Senator Leman has brought this idea forward before. She agreed that the Senate could do a title change with a two-thirds vote, but that was not desired as the first objective. In response to Representative Porter, she said that there is not a Senate Bill that is moving. MR. LINDBACK informed the committee that there is a version in Senate Judiciary. REPRESENTATIVE JOULE inquired as to what happened the first time that Senator Leman championed this. MS. KREITZER related her belief that the newspaper industry prevailed with some members. She did not know if that would happen again as the state is in a different fiscal situation now. From Senator Leman's perspective, it is a fiduciary responsibility in that the bottom line of the state is important not the bottom line of the newspaper industry. If [the state] can save several hundred thousand dollars in legal advertisements, as DOT did, and still provide the necessary information to the public in a legal notice [then that should be attempted]. She indicated the need to have several different mediums as no one system is full-proof. REPRESENTATIVE BERKOWITZ commented that not much has changed in the Senate recently. Unless there has been some seat change in the Senate that would indicate the bill with the proposed amendment would go through, Representative Berkowitz said he was inclined to oppose the amendment as it would seem to be the death of the bill. MS. KREITZER reiterated the need for the state to save money where possible. REPRESENTATIVE PORTER asked if Ms. Kreitzer had any reason to believe that HB 315 would receive different committee referrals than the Senate Bill did. MS. KREITZER noted that House bills similar to Senate bills do not always receive the same committee referrals in the Senate. She said that she did not know. Number 1456 MR. LINDBACK turned to the issue of cost. He informed the committee that when these provisions were introduced as the Governor's bill in 1997, the fiscal note was zero. The zero fiscal note resulted from the agencies' belief that they would advertise in a more prominent way not a cheaper way. By moving advertisements out of the legal section and into the display ad, nobody could confidently say that could really save money. The agencies liked it at the time because the advertising would be more prominent and receive fewer complaints from people about regulations that they did not know were going to happen. Therefore, he believes there is an argument with regard to whether this amendment would truly save money. MR. LINDBACK answered, in response to Chairman Cowdery, that he did not know how much is being paid for these notices. In further response to Chairman Cowdery, he cited the Anchorage Daily News, the Fairbanks Daily Miner and the Juneau Empire as the three newspapers that receive the most legal advertisements. He estimated that 95 percent of the regulation packets coming through the Office of the Lieutenant Governor come from the three mentioned and probably in that order. With regard to discounts for volume, Mr. Lindback said that he could not speak to that. He did not recall that there were special deals for government. CHAIRMAN COWDERY inquired as to why the media is not present when this legislation impacts them. Number 1575 REPRESENTATIVE KOTT asked if there was any discussion with the media on this amendment prior to this hearing. MS. KREITZER said that the media is well aware of the amendment. She noted that Senator Leman had related his fiduciary responsibilities to the media. REPRESENTATIVE PORTER noted that he had received a call from John Winters, Publisher of the Juneau Empire, before this hearing. REPRESENTATIVE KOTT moved that the committee adopt the amendment [as amended]. REPRESENTATIVE BERKOWITZ objected. He commented, "If the Senate wants to play with this, the Senate should play with it. But I'm quite willing to vote on this bill as it moves through the House." REPRESENTATIVE PORTER informed the committee that he is inclined to vote against the amendment as well. Although he appreciated the intent of the amendment and couldn't say that he disagreed with it, he indicated that the House would again take the heat. He said, "Unless we know that this action is going to be of some chance of success. For example, not get a [Senate] Judiciary referral. Again, here we are taking the heat and guess who escapes." CHAIRMAN COWDERY reiterated his concern that the media is not present, which he attributed to them not wanting to be on record. Upon a roll call vote, Representative Cowdery voted in favor of the adoption of the amendment [as amended] and Representatives Porter, Phillips, Kott, Berkowitz and Joule voted against the adoption of the amendment [as amended]. Representative Green was not in attendance. Therefore, the amendment [as amended] failed to be adopted with a vote of 1-5. Number 1725 REPRESENTATIVE PHILLIPS moved that the committee report HB 315 from committee with individual recommendations. There being no objection, it was so ordered and HB 315 was reported from committee.
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