Legislature(1995 - 1996)
03/18/1995 10:05 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 there." 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 Governor. 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 achieve. 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 Act. 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 needed. 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 Committee.