Legislature(1995 - 1996)
02/01/1996 08:00 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 422 - ANNUL ALL ADMIN. REGS; REPEAL APA Number 0218 The next order of business to come before the House State Affairs Committee was HB 422. CHAIR JAMES called on Joe Ryan, Legislative Assistant to Representative Al Vezey to read the sponsor statement for HB 422. Number 0218 JOE RYAN, Legislative Assistant to Representative Al Vezey, said Representative Vezey was not feeling well today and read the following sponsor statement into the record. "The people of Alaska have been demanding that the legislature, the people elected to represent them, accept the responsibility and the corresponding accountability for the laws that they the people have to live under. "It is time for the legislature to reclaim it's legislative authority and accept the constitutional responsibility they have for making laws. HB - 422 will ensure that the people of Alaska live under laws passed by the people whom they have elected to represent them and not by the employees they have hired to carry out the these same laws. "More and more Alaskans are voicing concern that the cost of regulations has gotten out of hand. In addition to the cost, the frustrations experienced by the public in trying to comply with an every increasing maze of regulations, have brought the matter to our attention. In quite a few instances, new regulations often conflict with those already in place by federal agencies making it impossible to get there from here. "The question is; does the legislature want to shirk it's responsibility and allow major policy changes to be implemented by the employees of the state of Alaska who are not elected by any position." MR. RYAN: I can give you a brief summary of how this Administrative Procedures Act came in. I remember hearing Representative Congressman Young talking about how when he was in this legislative body, Governor Hickel in his first term requested an Administrative Procedures Act and they gave it to him much to their chagrin. The...no where in the Constitution of the United States or the state of Alaska does it say that legislative authority will be given to the Administration, in fact, the separation of powers is what's suppose to keep our government working in a balance. The -- unfortunately Madison didn't die until 1840 and his minutes of the Constitutional Convention were such that he didn't release them, and so people didn't really know what the founding fathers when they put the Constitution together meant. And in the interim, people like John Marshall usurped the authority of the Supreme Court to interpret the Constitution. A number of other people jumped in to the gap and grabbed whatever power was available because there was no one to contradict them. What we have in Alaska with the Administrative Procedures Act is basically instances such as some of the things we received last year where the Department of Labor and the Department of Transportation adopt a whole cloth the code of federal regulations for state regulations. Now, these were regulations that had been made by federal bureaucrats and we in turn have them here in Alaska as Alaska law under which people have to live...have to go through the same appeal process and so forth and thought wasn't even given to these things to deal with local considerations. They just said well, we're going...proposed to adopt...here we are we're taking CFR 43 chapters blah, blah, blah to blah, blah, blah. And this will be it, and there's not a large public (indisc.) cry. That's what the people in the state have...(indisc.) to live under. So, extraordinary, if I may borrow from Thomas Paine, "these are the times that try men's souls." Extraordinary problems sometime require extraordinary solutions. My representative feels that it's time the legislature come back and take the authority that it's given by the constitution back and then if you'll notice in the...in here it asked the Administration to propose laws to fill the gaps that the regulations would leave and then this body will consider those laws and decide which ones are prudent and which ones that the citizens of the state should be required to live under, and discard those that aren't. And, that's about all I have. Number 0394 REPRESENTATIVE ROBINSON commented, if all regulations were repealed, then new regulations would need to be developed and adopted by the legislature. Number 0407 MR. RYAN: What this...what this bill calls for is the repeal of 4462 which is the Administrative Procedures Act, and when...when you repeal of course the legislation that gives you authority for the regulatory authority for the delegation of authority that goes away because there's no substantial...substantive basis for anyone writing a regulation. The statute had been repealed. So, it also requires that the Administration prepare -- back here on Section 3...no I mean B. "Each agency the executive branch of state government with the authority to adopt regulations shall submit proposed draft legislation necessary to accommodate this act of the House and Senate Rules Committee on the first day of the first regulation session of the Twentieth Alaska State Legislature." MR. RYAN: So, because a lot of times in the past of the Administrative Procedures Act a lot of people have come up with a one page bill - not very comprehensive legislation - and delegated the authority to the Administration to flush it out. Now, it will have to be -- these laws that are in effect will have to be flushed out by the legislature, and giving the Administration an opportunity to contribute their thoughts and the legislature, of course, exercising its prerogative will decide which of those suggestions should be adopted and which shouldn't. Number 0466 REPRESENTATIVE ROBINSON wondered what type of legislation this would require, and if the legislature would write the regulations. Number 0490 MR. RYAN: The people that founded the country knew how difficult it was to try to get a group of people to agree. And, the underlying principle was if you look back at King George, and the Declaration of Independence, how he would send his agents among us to rob us of our substance...these are the words that are used. They indiscriminately pass the king's regulations -- remember they chose to facilitate their jobs and make things easier -- and so the people in their wisdom, if you...the minutes of the Constitutional Convention decided that legislation under which the citizens would live would be passed by folks whom they elected to represent them. So, if they didn't like it they could go back and get it changed by getting rid of the people and putting someone new in. What we have is a...the agreement when we allow the Administration to do it, it very simply...a fellow is being paid man or woman with a state salary, a state pen, state paper, and they just write whatever is convenient for them to do their job. And, unless there is a large (indisc.) cry it becomes law. And, somewhere in the arcane thinking of the Supreme Court they said you can delegate your authority but to take it back requires the same vote that was required to overturn the Governor's veto. They...how this logic was used to arrive at this conclusion a lot of people have questioned over the years. But, of course, being what they are.... Number 0556 REPRESENTATIVE ROBINSON questioned who would write the regulations. She wondered if the legal drafters would write them and then the legislator would review them. Number 0566 MR. RYAN: Well, O.K., the process I would assume would be for instance if you were to...you initiate...or to exercise your legislative prerogative and you were to call up the legislative drafting people and say, "I want a law that does this." And, then our leg legal would draft that bill for you in its entirety, and they would send it back for your preview. And you would say, "Well, this looks fairly comprehensive legislation," and you would introduce it. Then the various committees and so forth and the testimony that would come from the agencies and they said, "Wait a minute, how can we handle this because it's not (indisc. -- coughing) we have these particular problems perhaps of which you are unaware, and we don't...won't know how to handle this." And, then the committee would say, "Hum, well we need some suggestions...the maker perhaps needs to address that and or suggestions forthcoming from the Administration...how do you think...now, put it in the...in the legislation itself." What we come down to is something I have asked to the Administration on numerous occasions, why they want regulations rather than making policy. And, they have said, "When we go to court with policy we always lose. This is our division policy...this is how the administrative policy...when we go to court with regulations, we win because they have the force of law." So, what does that do to the public? If you pass a law and the Administration decides they're going to have a policy of administering it in this respect and someone challenges it in court and they usually lose, the court... there must be reason why the court is ruling against them. Where it's a regulation, the court has to look at it as a law. And, now they come back with a...with a different interpretation because you folk have given these people the right to write these laws under the Administrative Procedures Act, and so the court assumes that this is your intention - not necessarily the policy of the Administration - so there's...there's a different perspective given there. When... and that's how the comprehensiveness of the legislation would be. And, from time-to-time there would be problems that would arise in the future and these things would have to be tweaked and amended -- nothing is ever written in stone. Things...life is dynamic...things change. But...that would probably be addressed from session to session. Number 0665 CHAIR JAMES said HB 422 represented the typical problem the legislature was facing today - being in a different place today because of mistakes made earlier. She agreed mistakes had been made, but she was not convinced going back to the start would solve the problems because of the system in place. Number 0720 REPRESENTATIVE PORTER said HB 422 would repeal all regulations, and wondered what would happen during the interim. Number 0760 CHAIR JAMES replied there was an effective date of July 1, 1997 so nothing would happen until then except for preparation. Number 0770 REPRESENTATIVE OGAN said as more statutes were passed at least one should be deleted. He suggested when statutes were passed regulatory authority should be precluded, otherwise, it turned into a regulatory nightmare for the companies trying to operate. He further said the cure was worse than the problem. Number 0840 MR. RYAN: Well...If I may just add one thing as an aside, a couple of years ago we passed house bill 65 which gave the Administration the ability to raise fees by regulation. The last year we collected the state income tax...we collected 100.5 million dollars last year we collected 196 million in fees. And you folks are trying to cut the budget, and every time you cut the budget the fees go up on the other end to makeup the whole. So, I wonder if...you know...is it two steps forwards...one step forward and two steps backward, or you may consider that. Number 0868 REPRESENTATIVE OGAN said regulations needed to be reduced as well when reducing the budget this year. He alleged the size of the government was not decreasing and the burden was being shifted to the user fees. He stated that was a problem. Number 0892 CHAIR JAMES commented the legislature should not have given all its authority away with respect to regulations. She cited the legislature gave away its oversite power in the process. CHAIR JAMES called on the next witnesses in Juneau, Deborah Behr, and John Lindback. Number 0929 JOHN LINDBACK, Chief of Staff, Office of the Lieutenant Governor, addressed policy concerns regarding HB 422. He stated Governor Knowles' signed Administrative Order No. 157. He said the order was an attempt to explain its concerns regarding the administrative regulatory process. He stated it considered minimizing cost, using "plain English," reviewing current regulations, and making the process more accessible. He further said the Administration adopted HB 130 passed last year by the legislature which made the Governor more accountable for regulations. He said the power was delegated to the Lieutenant Governor and was in the process of implementing HB 130. He stated the Lieutenant Governor was sympathetic to the legislature as a former member. He pointed out HB 130 did not give authority to reject boards and commissions. Mr. Lindback said if HB 422 was passed it would be new ground because no other state in the U.S. had passed a similar law. He also said the absence of regulations would give unbridled discretion to the bureaucrat. He further stated it would be impossible to draft a piece of legislation that foresaw every situation which meant the bureaucrat would be making the decisions. He said regulations were a check on bureaucratic power. He wondered if the legislature wanted to regulate bag limits, for example, for the Department of Fish and Game every session. He said it appeared like an overwhelming task. He wondered about regulating occupations. He said they wanted regulations of some kind, and if moved to the legislative arena, how would anything get done. In conclusion, he said, the Administration was committed to improving and streamlining the regulatory process and making it cost conscious. He further said HB 422 looked like chaos and left it to state managers to interpret laws how they saw fit. Number 1170 DEBORAH BEHR, Assistant Attorney General, Legislation and Regulations Section, Civil Division, Department of Law, said HB 422 did more than repeal all regulations. She said it also repealed the APA hearing procedures used by the occupational licensing boards to allow citizens to raise complaints in a cheap forum. She said HB 422 also repealed the Alaska Administrative Journal which provided procurement announcements, and lists of board openings. She cited the history of the APA. In 1946 the first federal administrative procedures act appeared because Congress wanted to bridle unfettered agency interpretation of statutes. In 1959 Alaska adopted the APA because it was impossible for a citizen to determine which regulations affected them. She alleged the APA was a consumer protection act because an agency could not adopt a manual, policy or an interpretation that affected the public without giving notice and an opportunity for comment. The APA also required the Attorney General to sign-off for legal approval. She cited if the APA was not there she would not have authority to disapprove a regulation on legal grounds. Ms. Behr said a major check was being taken away by repealing the APA. Therefore, the clock was being turned back to 1959 before Alaska adopted the APA. She also said there would be no published code of rules, but rather interpretation of statutes. She stated she was not sure how HB 422 would be implemented. She suggested a six month review process after which suggestions would be made of what needed to be laws. She wondered if anything else would be accomplished during the session. Ms. Behr also said a case resolved in court cost 30 percent more than when resolved at the administrative level and with the repeal of the regulations, litigation was expected. She further said HB 422 changed the role of the citizen boards and commissions because it took away authority to set policy, for example. She alleged this would create an unstable business climate due to a slower response time. She said she was concerned about the day-to-day situations which required responses when the legislature was in session. She cited some issues required focused attention and quick responses. She was also concerned about routine changes in the federal programs to meet federal requirements and the sanctions could be substantial when not in compliance. She cited federal preemption was a concern also. She further cited there were approximately 350 to 400 APA hearings each year demonstrating the impact on the courts. She wondered if the legislature wanted to take away the Department of Correction's ability to regulate prisoners, for example. She further cited Section 3 (b) which allowed separate agencies to bring laws to the legislature rather than through a central process via the Governor. In conclusion, she said, she would be happy to answer any questions. CHAIR JAMES called on the next witness via teleconference in Fairbanks, Gerald Newton. Number 1837 GERALD NEWTON said he was astonished anyone would introduce a bill such as HB 422. He alleged Representative Vezey introduced it because most of his constituencies were part of Fort Wainwright and it would not apply to them. He said Representative Vezey continued to attack state institutions with no accountability. He cited the Electrical Administrator Law which Representative Vezey was responsible for. As a result, he alleged three homes were wired by an unqualified contractor. CHAIR JAMES asked Mr. Newton to comment specifically on HB 422. MR. NEWTON said his testimony was specifically on this bill because the administrative part of the law was removed by Representative Vezey and alleged HB 422 would do the same thing. He said it was not right, not just, and asserted Representative Vezey hid in his federal enclave and did not answer to his constituents.
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