Legislature(1995 - 1996)

03/18/1995 10:05 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HSTA - 03/18/95                                                               
 HB 130 - REGULATION ADOPTION PROCEDURES & REVIEW                          
 Number 028                                                                    
 BRUCE CAMPBELL, Administrative Assistant to Representative Pete               
 Kelly, presented a sectional analysis which outlined the                      
 differences in Version O of HB 130.  He stated Section 1                      
 clarifies the powers and the goals set by the legislature for the             
 Administrative Regulation Review Committee.  Section 2 has been               
 streamlined, deleting the thirty day time frame for the                       
 Lieutenant Governor's office to transmit pre-filed regulations to             
 the Administrative Regulation Review Committee.  Section 2 also               
 now specifies the reasons the Lieutenant Governor may return                  
 final draft regulations to an agency, including allowing the                  
 agency to respond to the Department of Law and the Administrative             
 Regulation Review Committee's comments.                                       
 Number 180                                                                    
 REPRESENTATIVE JOE GREEN asked for a clarification of the                     
 Department of Law's role.                                                     
 MR. CAMPBELL answered there is not a full agreement between his               
 office and the Department of Law on what this means.                          
 CHAIR JAMES added the committee will be hearing from the                      
 Department of Law.                                                            
 Number 200                                                                    
 MR. CAMPBELL returned to the sectional analysis, stating there                
 were virtually no changes to Section 3.  Section 4 is a                       
 relatively new section which attempts to maintain consistency                 
 with Section 6 and to clarify the Department of Law's role in                 
 reviewing regulations for statutory consistency.  Section 5                   
 matches the 30-day period allowed the Regulation Review Committee             
 to the 30 days given the Department of Law.  He clarified it is               
 not a hard deadline, since it can be extended by the Department               
 of Law, but it allows the Lieutenant Governor to track                        
 regulations in the Department of Law and requires the Department              
 of Law to provide an expected time frame for its review of a                  
 complex regulation.                                                           
 Number 245                                                                    
 CHAIR JAMES inquired about who would file an order for repeal.                
 MR. CAMPBELL replied the Lieutenant Governor could file an order              
 for repeal.                                                                   
 CHAIR JAMES asked if this would include an order for repeal that              
 comes to the Lieutenant Governor from someone else.                           
 MR. CAMPBELL replied yes, this was part of the code throughout                
 the Administrative Procedures Act.                                            
 Number 261                                                                    
 MR. CAMPBELL said Section 6 clarifies some earlier confusion and              
 also exempts Board of Fisheries and Board of Game from providing              
 examples of economically feasible methods of complying with the               
 proposed regulatory action.                                                   
 Number 311                                                                    
 REPRESENTATIVE CAREN ROBINSON asked why the Boards of Fish and                
 Game are exempt, and why those boards were picked over other                  
 boards, for example the Board of Education.                                   
 MR. CAMPBELL replied, because they were more familiar with the                
 Board of Fish and the Board of Game, and those boards are                     
 recognized as having one of the most open and speedy public                   
 processes in the state since they need to respond quickly within              
 an applicable season.                                                         
 REPRESENTATIVE ROBINSON asked if the State Board of Education                 
 might have similar needs, regarding students.                                 
 MR. CAMPBELL responded this was good input and could make an                  
 excellent amendment.                                                          
 Number 335                                                                    
 REPRESENTATIVE IVAN expressed concern about fishery allocations               
 being rejected by the Lieutenant Governor and agreed with                     
 exempting the Board of Fisheries.                                             
 REPRESENTATIVE ROBINSON clarified she agreed the Board of                     
 Fisheries should be exempt; her concern was that perhaps other                
 boards should be exempt as well.                                              
 Number 361                                                                    
 REPRESENTATIVE GREEN said as he reads the bill, if there is an                
 amendment to an existing regulation, the agency is required to                
 give an example of an economically feasible method of complying.              
 He asked if this meant a method for the public to comply, a                   
 method for all the users affected to comply, or a method for the              
 agency to comply.                                                             
 MR. CAMPBELL said it is intended to be an example of compliance               
 for the users and the impact upon them, not the agency's                      
 compliance.  He said the word "private" had been inadvertently                
 eliminated, but that the intent is to give examples of how the                
 individuals impacted by the regulation can comply.                            
 REPRESENTATIVE GREEN said he is still concerned with the agency's             
 ability to give an example that sufficiently covers how an                    
 individual might comply.                                                      
 MR. CAMPBELL gave an example of standards set for drilling mud in             
 an oil well; the agency could propose using "drilling mud XYZ"                
 and that example would show a product which had been analyzed and             
 met necessary requirements.                                                   
 Number 419                                                                    
 REPRESENTATIVE GREEN asked, using the same example, whether it                
 included economically viable alternatives.                                    
 MR. CAMPBELL replied the issue is to require examples of how                  
 compliance with a regulation can be achieved in an economically               
 feasible manner.                                                              
 Number 443                                                                    
 REPRESENTATIVE GREEN said "economically" is a big, big area, and              
 he still was not clear on the meaning.                                        
 MR. CAMPBELL said regulations can become too specific and thus                
 cost too much, and this is not the legislative intent.                        
 REPRESENTATIVE GREEN said he still "saw a train wreck happening               
 Number 476                                                                    
 CHAIR JAMES said it appears to her that maybe there are some                  
 regulations where it is the intent of the legislature to be very              
 specific.  She asked if there is no economically feasible method              
 for compliance, would stating "there is none" be approved under               
 the language of the bill.                                                     
 MR. CAMPBELL answered "no."                                                   
 CHAIR JAMES asked if this meant every regulation written would                
 have to have an economically feasible method of compliance.                   
 MR. CAMPBELL answered "yes."                                                  
 Number 488                                                                    
 MR. CAMPBELL continued with the sectional analysis, stating                   
 Sections 7 and 8 are virtually unchanged; they just clarify                   
 constructional language making the added requirements of Section              
 6 exempt from emergency regulations.                                          
 Number 495                                                                    
 REPRESENTATIVE GREEN moved acceptance of CS for HB 130, Version               
 O, dated 3/17/95, as the work draft.  There were no objections.               
 Number 501                                                                    
 REPRESENTATIVE ROBINSON referred to the need for date changes on              
 Mr. Campbell's flow chart.  She asked why the entire power for                
 these decisions is given to the Lieutenant Governor and not the               
 Number 516                                                                    
 MR. CAMPBELL replied the Lieutenant Governor has traditionally                
 been the repository for regulations and they were not quite                   
 willing to break with that tradition.  He added if the                        
 legislature gave that power to the Governor, whose job is largely             
 that of delegating authority to commissioners, directors,                     
 regional managers, and others, then authority over regulations                
 would be delegated to an unelected official.  In addition, the                
 Governor cannot be expected to read all the regulations.  This                
 would bring the regulation process to a halt.  He agreed deciding             
 who has that authority it is an important issue, because the                  
 responsible party is authorized to create laws.                               
 Number 546                                                                    
 CHAIR JAMES said as she understand current statutes, final draft              
 approval is given by Department of Law.  She asked if the                     
 Lieutenant Governor refused to sign a regulation, would it go                 
 back through the Department of Law and what would happen to it                
 after that, under HB 130.                                                     
 MR. CAMPBELL replied it would go directly back to the adopting                
 agency, which would respond directly to the concerns of the                   
 Lieutenant Governor.  He added HB 130 is not attempting to be a               
 regulation reform bill; it is trying to codify some of the better             
 existing practices within the Administrative Procedures Act.  He              
 said there are larger goals and questions which need to be                    
 addressed with respect to the entire delegation of authority to               
 the Administrative branch, and he is interested in working on                 
 that separate from the small tasks which HB 130 is trying to                  
 Number 570                                                                    
 CHAIR JAMES returned to her question, stating currently the                   
 Department of Law's statutory attorney is the individual who has              
 the final say, and asking if HB 130 gives that final authority                
 instead to the Lieutenant Governor.                                           
 MR. CAMPBELL said the Department of Law would still have the                  
 authority to say "no," but the Lieutenant Governor would have the             
 authority to have his concerns addressed.                                     
 Number 582                                                                    
 DEBORAH BEHR, Regulations Attorney with the Department of Law,                
 discussed issues regarding the CS for HB 130.  She said the CS                
 made substantial improvement but she still had concerns.  She                 
 believes the bill is unconstitutional by delegating the power to              
 return regulations directly to the Lieutenant Governor, instead               
 of the delegating it to the Governor who could in turn delegate               
 it to the Lieutenant Governor, because the Constitution states                
 the Governor is the head of the Executive Branch.  Under HB 130,              
 if the Governor and Lieutenant Governor had a disagreement, the               
 Lieutenant Governor could continue to return regulations to state             
 agencies even though the Governor and the entire Cabinet thought              
 the regulations were in the public interest and followed the law.             
 MS. BEHR added HB 130 has no limit on the number of times the                 
 Lieutenant Governor can send regulations back; if there is a                  
 policy disagreement between a Commissioner and the Lieutenant                 
 Governor, the bill could continue being sent back an unlimited                
 number of times.                                                              
 MS. BEHR clarified her role, saying under existing law she may                
 not look for policy issues; she can only investigate whether                  
 regulations are legal, constitutional, and whether they follow                
 the process.  The Lieutenant Governor currently files regulations             
 and asks for briefings on regulations but has no role in policy               
 issues.  Policy issues are handled at the Cabinet level.                      
 MS. BEHR added the existing system has some checks and balances.              
 Regulations can be challenged in court for declaratory judgement              
 as arbitrary and capricious.  A less expensive way which the                  
 average person can use is to petition the state agency to look at             
 a regulation; this can even be done by letter, without hiring an              
 attorney, so there is no real cost.  Many people are not aware of             
 this petition process, which is in the Administrative Procedures              
 Number 621                                                                    
 REPRESENTATIVE ROBINSON inquired if the commissioners have a                  
 responsibility to respond to such a petition.                                 
 MS. BEHR replied the commissioner must either disapprove the                  
 petition or "set it on for notice" within 30 days.  If this is                
 not done, an attorney can bring a declaratory judgement to make               
 the commissioner take an action on the petition.                              
 Number 636                                                                    
 MS. BEHR continued, saying as she reads HB 130, the Boards of                 
 Fish and Game are exempt only from giving an example of an                    
 economically feasible method, which is a very small part of the               
 process.  The Lieutenant Governor could send regulations back at              
 any other point in the process, which would create "total chaos               
 in the fishing season."  If these Boards are to be exempted                   
 completely, HB 130 does not do that.                                          
 Number 651                                                                    
 MS. BEHR  discussed page 2, line 14, which refers to the                      
 Regulation Review Committee providing comments within 30 days.                
 This could make a mandate that the Board meet every 30 days; it               
 would be difficult to get a quorum during the summer and during               
 elections.  It might be more appropriate to state, "If they are               
 going to issue comments, they have to do it within 30 days."                  
 That would address her concern with the bill being so                         
 "open-ended, that they could provide comments for years."                     
 MS. BEHR referred to the next section which deals with returning              
 regulations to the Lieutenant Governor, reiterating it may be                 
 unconstitutional, and also she was concerned because some                     
 regulations cannot wait the full 30 days.                                     
 Number 679                                                                    
 CHAIR JAMES asked if the "emergency regulations" provision would              
 generally solve this problem when an answer is needed sooner than             
 30 days.                                                                      
 MS. BEHR replied she did not believe so, because the standards                
 for emergency regulations in Alaska require "the immediate                    
 preservation of the public health, safety, and welfare," and                  
 there is another section of the Administrative Procedures Act                 
 which says "emergencies are to rarely occur."                                 
 MS. BEHR mentioned she was confused because when a regulation is              
 disapproved by the Department of Law for legal reasons, they                  
 return it to the commissioner directly without giving it to the               
 Lieutenant Governor.  She could not tell whether HB 130 asks her              
 to do the disapproval letter then give it to the Lieutenant                   
 Governor and require him to return it, which seems to create                  
 extra paper work and delay; or if it would set up a situation                 
 where state agencies have a right to respond to legal advice by               
 the Department of Law which would set up a perception that legal              
 issues are a negotiation process.  She added the attorney general             
 is the chief legal officer in the state and has the final call on             
 whether something is constitutionally legal.                                  
 Number 703                                                                    
 MS. BEHR referred to page 3, lines 9 and 10, saying she had given             
 a drafted suggestion to the staff amending it to read "along with             
 the notice, send a copy of the regulation."                                   
 TAPE 95-29, SIDE B                                                            
 Number 000                                                                    
 MS. BEHR added the requirement for providing a transcribed,                   
 written record of testimony on regulations creates an added cost              
 and a time delay, which is contrary to an effort to reduce the                
 cost of state government.                                                     
 Number 024                                                                    
 MS. BEHR cited page 4, line 9, suggesting if the bill sponsor is              
 trying to create dialogue between the state agency and the public             
 on fiscal costs, then "fiscal costs" should be included.                      
 Requiring written responses to all oral comments would                        
 substantially add to costs.  She expressed concerns about lines               
 13 through 16 requiring an agency to weigh, evaluate, or                      
 otherwise utilize public comment that is nonfactual or an                     
 expression of preference; this would eliminate a great deal of                
 public input.                                                                 
 MS. BEHR referred to page 4, line 19, which requires a written                
 example of an economically feasible method for complying, stating             
 she fears this is an "open door for court suits."  She suggested              
 adding an exception for "good faith," or adding a prohibition                 
 against someone bringing suit based on the agency's example.  She             
 added some industries are on the cutting edge of scientific                   
 information and might come up with much better methods.                       
 Number 117                                                                    
 CHAIR JAMES called Mr. Campbell back to the table to respond to               
 Ms. Behr's comments.                                                          
 Number 130                                                                    
 MR. CAMPBELL said the bill sponsor's intent may not have been                 
 expressed well, in light of Ms. Behr's comments, and her                      
 suggestions would be incorporated.  Specifically, he stated on                
 page 4, lines 17-20, a definition of "economically feasible" is               
 Number 175                                                                    
 REPRESENTATIVE GREEN referred to page 2, the danger of "getting               
 into a loop" and the difficulty of getting a quorum in certain                
 seasons of the year.                                                          
 MR. CAMPBELL replied maybe the "shall" should be changed to                   
 "may," and the Regulation Review Committee should be given a time             
 limit for responding instead of a mandate to respond.                         
 CHAIR JAMES asked whether this change would mean if the 30 days               
 passed without a response from the Committee, the opportunity to              
 respond would be gone.                                                        
 MR. CAMPBELL said this was correct.                                           
 Number 200                                                                    
 REPRESENTATIVE GREEN asked if the Committee did not respond                   
 within the 30 days, would this default be considered the same as              
 an acceptance.                                                                
 MS. BEHR responded that in order to avoid the Committee's lack of             
 response being interpreted to mean the legislature affirms a                  
 policy, the bill should say to the Committee, "If you are going               
 to comment, do it within 30 days."                                            
 REPRESENTATIVE GREEN asked if tape recordings would work in place             
 of written records of testimony, to save time and money.                      
 MR. CAMPBELL responded in the affirmative.  He added he                       
 recognized the need to more completely exempt the Boards of Fish              
 and Game.                                                                     
 MS. BEHR reiterated requiring written records of publicly-noticed             
 meetings creates additional cost and time delay.                              
 Number 240                                                                    
 CHAIR JAMES commented on her experience with the concealed carry              
 regulations.  She had several requests for written transcripts of             
 the public testimony; it would have been a massive amount of                  
 transcription, and she was anxious to get the regulations through             
 the process, so she settled for the tapes instead.                            
 Number 253                                                                    
 REPRESENTATIVE ROBINSON referred to placing limits on the number              
 of times the Lieutenant Governor could send regulations back,                 
 stating she agreed this would be a good idea.                                 
 MR. CAMPBELL agreed.                                                          
 REPRESENTATIVE ROBINSON commented the bill sponsor would have to              
 determine what he thought would be a fair number, but she felt                
 strongly a limit needed to be stated in the bill.                             
 Number 290                                                                    
 CHAIR JAMES spoke to Mr. Campbell, stating a number of changes                
 had been discussed and requested by the State Affairs Committee.              
 She noted he had agreed to these changes, and requested he                    
 closely review the minutes of this meeting and, if the bill is                
 moved at this meeting, address these changes.                                 
 MR. CAMPBELL responded the changes and comments voiced today were             
 excellent, and part of a valuable process.  He stated he and the              
 bill sponsor were committed to address those points.                          
 Number 325                                                                    
 REPRESENTATIVE IVAN made a motion to move CSHB 130 from the State             
 Affairs Committee, with individual recommendations and attached               
 fiscal note, and with requested changes noted.                                
 Number 337                                                                    
 REPRESENTATIVE ROBINSON commented she would not stop the process,             
 but she believed the bill sponsor's intent was not achieved.  She             
 noted there is a desire to streamline the regulation process and              
 stop bad regulations, but HB 130 does not accomplish this; in                 
 fact it causes more problems than it solves.  She hopes, as the               
 bill moves on, it will be redrafted to achieve what everyone                  
 wants.  She added there is a long ways to go before that happens.             
 REPRESENTATIVE GREEN agreed, declaring the bill is what he wants              
 from a State Affairs position, but from perhaps a legal position              
 it would need a lot of work, and the transcript of suggestions                
 made in this meeting will be valuable.  With that in mind, he                 
 would vote to move the bill.                                                  
 Number 365                                                                    
 CHAIR JAMES asked if there were objections to moving the bill.                
 There were none, so CSHB 130(STA) passed out of the State Affairs             

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