Legislature(2017 - 2018)GRUENBERG 120
04/04/2017 03:00 PM House STATE AFFAIRS
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HB 190-REGULATION ADOPTION/ORAL COMMENT 3:20:46 PM CHAIR KREISS-TOMKINS announced that the next order of business would be HOUSE BILL NO. 190, "An Act relating to the presentation of oral comments on the proposed adoption, amendment, or repeal of regulations." 3:21:57 PM REPRESENTATIVE KNOPP, after ascertaining the correct document for the motion, moved to adopt the proposed committee substitute (CS) for HB 190, Version 30-LS0732\J, Bannister, 3/31/17, as the working document. There being no objection, Version J was before the committee. 3:22:38 PM JULIE MORRIS, Staff, Representative Dave Talerico, Alaska State Legislature, on behalf of Representative Talerico, prime sponsor of HB 190, reviewed the document included in the committee packet entitled "Explanation of Changes to HB 190 Version A to Version J," which read as follows [original punctuation provided]: Sec. 1 AS 44.62.190(a)(1) deletes newspaper from a requirement of publication., and includes the Internet address of the state Agency's Internet website. Sec. 2 AS 44.62.200 (d) deletes the newspaper requirement. Sec. 3 AS 44.62.210(a) deleted language (when requested by the person or the person's authorized representative). Sec. 4 AS 44.62.245 (b)(2) amends post to the agency's Internet website and deletes requirement in newspaper of general circulation. Sec. AS.21.123 (b) repealed the oral requirement in this statute since it will be covered now in Section 3. Sec. 6 Applicability applies to regulations amended, adoption [sic] or repealed on or after effective date. 3:25:19 PM REPRESENTATIVE BIRCH referred to the fiscal note and asked what savings would be realized by eliminating the requirement for publishing [a proposed action to adopt, amend, or repeal a regulation] in a newspaper. MS. MORRIS explained that the fiscal note, included in the committee packet, was drafted for Version A. She stated that the publication requirements, both in newspaper and trade and industry publications, and any potential savings under Version J are still in discussion. 3:26:21 PM REPRESENTATIVE KNOPP asked, "At whose request are we removing the newspaper component?" MS. MORRIS responded that the discussion of the cost of publications occurred during meetings with "the chairman and his staff," the Department of Law (DOL), and the Department of Commerce, Community, and Economic Development (DCCED). She stated that the public can post written comments to the website for online public notices; however, depending on the agency, oral testimony is not always allowed. REPRESENTATIVE KNOPP commented that he is not as technology ("tech") savvy as some people and still relies on the newspaper to be alerted to proposed regulation changes. He added that he consults the website after seeing notice in the newspaper. He stated that he has an issue with excluding newspaper publication [of proposed regulation changes]. 3:27:55 PM REPRESENTATIVE JOHNSON asked if there has been consideration for a consistent standard throughout the [Alaska Administrative] Code (AAC) for notification procedures and information sharing. MS. MORRIS answered that in the proposed legislation, the consideration has been for allowing the public the opportunity to give oral comment. She maintained that the elimination of a newspaper publication for public notification is secondary. She conceded that many people still do rely on newspapers for information instead of electronic devices. She emphasized that there is a need to "get the word out" on how regulations are being amended and changed. She asserted that she does not want to create more bureaucracy but wants to streamline the process and allow oral testimony. She maintained that doing so would neither slow the process down nor cost more money. REPRESENTATIVE JOHNSON agreed that there are many people relying on the newspaper for notices. She expressed a need for bridging the gap between those individuals and tech savvy people by making the information available both in newspapers and online. She suggested that the requirement for newspaper publication be retained and the language for the information technology (IT) piece be added to the statute until the state attains consistency regarding its public notices. She lamented that currently there is no standardization in that regard. 3:32:23 PM REPRESENTATIVE WOOL stated that in Version A, oral testimony would have been allowed in addition to written testimony. He added that oral testimony is less formal than written testimony and undocumented. He asked if it was the intent of the original version of HB 190 to allow the less formal testimony. 3:33:06 PM REPRESENTATIVE DAVE TALERICO, Alaska State Legislature, prime sponsor of HB 190, responded, "That was the intention." He referred to the 129 boards and commissions in Alaska to point out that not all of them adopt, amend, or repeal regulations. He gave two examples of groups which make recommendations but have no regulatory authority: the Alaska Minerals Commission (AMC) and the Alaska Safety Advisory Council (ASAC). He offered that the Alaska Board of Architects and Engineers is one board that does have regulatory authority. He concluded that under the proposed legislation, oral testimony would be available for those boards and commissions that do have regulatory authority, but not for those that do not. REPRESENTATIVE WOOL asked if under Version J, a specialist, such as a geologist or an optometrist, who would be directly impacted by the proposed regulatory change, would be notified of it or would have to "find it." REPRESENTATIVE TALERICO answered, "That's probably the big question." He said that the changes in Version J are up for discussion. He expressed his belief that "our future is probably more electronic"; the discussion on procedures for notification is an important one going forward; and he conceded that many older people rely on the newspaper and many young people rely on electronic devices. REPRESENTATIVE WOOL mentioned that he reads online newspapers and is more apt to do that than visiting board websites or the Alaska Online Public Notice System. He offered his understanding that similar legislation was proposed by the committee chair allowing state agencies to put publications online rather than producing paper copies. He offered that he is more likely to read something that comes to his mailbox than to navigate to a website to obtain information. 3:38:26 PM SUSAN POLLARD, Chief Assistant Attorney General, Statewide Section Supervisor, Legislation & Regulations Section, Civil Division (Juneau), Department of Law (DOL), testified that one of her job duties is to advise agencies on how to comply with the administrative procedures while proceeding through the steps for adopting regulations. She stated that the Alaska Online Public Notice System is one of the available tools for receiving notice of state agency actions. She asserted that the system was not maintained by DOL but by the Office of the Lieutenant Governor (OLG). She mentioned that the notice of proposed regulation change or public hearing by an agency, board, or commission must be posted on the system. REPRESENTATIVE BIRCH asked what the cost differential was between a published advertisement in a newspaper and an online advertisement. 3:40:30 PM SARA CHAMBERS, Operations Manager, Division of Corporations, Business, and Professional Licensing (CBPL), Department of Commerce, Community & Economic Development (DCCED), responded that CBPL represents 21 boards and commissions and 22 licensing programs; all 43 entities have regulatory authority. She explained that CBPL posts proposed regulation changes on the Alaska Online Public Notice System; it sends notices to anyone on the interested parties list; and it sends notices to licensees who will be impacted by a regulation change, such as through a fee increase or an increase in the cost of continuing education. She added that CBPL always publishes notice in the newspaper. By statute it must be a newspaper with major circulation; therefore, CBPL chooses to publish in the largest newspaper in the state. She said that the cost of publishing a newspaper notice is typically a couple hundred dollars per notice; one project may require as many as four notices depending on the number of changes to the project and supplemental notices. She maintained that the potential savings to the licensees through the elimination of the requirement for a hard copy publication of notice - including a trade or industry publication notice - would be substantial. She added that it is the licensees who support CBPL; the division does not receive any state general funds (GF). 3:42:52 PM REPRESENTATIVE BIRCH asked if there is any legal reason for advertising in print media, or if online notification alone would be allowed. MS. POLLARD answered that the notice of proposed regulation changes is designed to reach interested parties and any person who potentially could be affected by the regulatory action. She stated that when the Administrative Procedure Act (APA) was adopted [in 1959], newspapers were the best method of providing general notice. She offered that there is probably no legal requirement for notification in print media, but she suggested that the question is: What is the best way to reach a diverse group? She said that the court has looked at whether a newspaper meets that standard, and she added that her agency could consider that further. 3:44:15 PM REPRESENTATIVE KNOPP mentioned that when he served at the municipal level, the assembly had to give notice of meeting agendas. He maintained that there was only one newspaper with general circulation; therefore, the rates were "out of control." He stated that to control cost, the assembly responded by giving as notice of meetings the date, time, and reference to a website. This reduced the advertisement from a half page down to a couple columns. He suggested that his concern is that the proposed regulation change be "noticed"; the content of the change is not necessary in the notification; and he can visit a website for the "body" of the proposed change. He reiterated that he avoids searching the internet unless it is a necessity. He stated that his concern is that electronic media would be the sole source of notice. He asked if the state has record of the number of times that the Alaska Online Public Notice System has been accessed and if there was any measure of the effectiveness of the system. MS. POLLARD replied that she did not know. 3:46:57 PM REPRESENTATIVE LEDOUX asked if notices of proposed regulation changes are published in the classified section of a trade or industry publication. She suggested that no one would look in the classified section for them. MS. CHAMBERS responded that notifications are published in the legal notices section. In response to Representative Knopp, she said that the notifications are condensed to the extent allowed by statute, the drafting manual, and the APA. REPRESENTATIVE LEDOUX suggested that professionals who are looking for notification in the legal notices section [of a trade or industry publication] would look online, if they knew that was where notice would be published. MS. CHAMBERS answered that she has discovered that when people are given the opportunity to select the method of notification - paper notification or email notification - more and more they are opting for email. She added that CBPL still publishes notification in newspapers, because it is required in statute. She concluded that CBPL posts notification to the Alaska Online Public Notice System, publishes it in the newspaper, posts it to its website, and continues to "push out" notification to licensees when requested. REPRESENTATIVE LEDOUX suggested the possibility of the proposed legislation only requiring that public notice [of a proposed regulation change] be posted online, and only sending it out through email or mail to people asking to be informed. MS. CHAMBERS responded that the impact of online-only notification to CBPL would be savings in time and cost. She mentioned that she did not know what the impact would be to the public. 3:50:52 PM REPRESENTATIVE LEDOUX requested that someone testify on the impact to the public of her suggested method of notification. MS. POLLARD replied that each agency, including each board and commission, would need to "weigh in" on how that would affect its interested parties. She added that DOL cannot speak for all executive branch departments; the DOL would assist the agencies to comply with whatever the legislature decides is the mandatory notice. MS. CHAMBER suggested that newspaper publishers may be able to give the results of studies that they have done on the readership of legal notices. 3:52:06 PM CHAIR KREISS-TOMKINS asked if the savings realized by eliminating the publication requirement would be savings to licensees who currently underwrite the cost of notification advertising through their license fees. MS. CHAMBERS responded that for her agency, that is true, but it is not necessarily true for other agencies with other funding mechanisms. She added that CBPL does represent a large portion of the "regulations generators." She offered that the Version J would retain the requirement for a trade or industry publication [to publish notification of a proposed regulation change], and she added that adopting the CS might be like "nailing Jell-O to a wall." CHAIR KREISS-TOMKINS clarified that Version J has been adopted by the committee. He asked that at the next committee meeting, members be provided with a review of the spectrum of annual savings to each license holder if the requirement for newspaper publication of notification were eliminated. MS. CHAMBER responded that an updated fiscal note would be provided for Version J. She added that if the proposed legislation eliminates the newspaper notification requirement but includes a trade or industry publication notification requirement, it may result in a far greater expense. 3:54:30 PM REPRESENTATIVE WOOL offered that a licensee would be notified of a proposed change in regulation; the discussion is regarding notice to the public. He asked, "Are you trying to reach beyond the licensees? Are you just trying to reach ... the average guy or girl? ... Who are you trying to reach with this?" MS. POLLARD answered that the people that an agency, board, or commission must reach is listed in the APA mandatory steps; these people include the licensees under CBPL, anyone on an interested parties list, and legislators. She stated that it is set in statute; the legislature gives the agencies parameters as to who needs to receive notice; and the intention is that the maximum number of people who are interested in the regulatory action will receive notice. REPRESENTATIVE WOOL mentioned that the trend of newspaper publishers is to put content online; people do not buy as many newspapers as they once did; and more people are reading newspapers online. He said that as a purchaser of a newspaper advertisement, he is given the choice - print or digital. He suggested that there are many who do read legal notices depending on their interests. He maintained that putting notice on a public, centralized location rather than a state website would be desirable to the average person. 3:57:32 PM REPRESENTATIVE JOHNSON referred to page 3, line 4, which read, "contentions in writing or orally" and asked Ms. Pollard if she had any comment on that phrase. MS. POLLARD responded that DOL does not have any comment. She explained that the section deals with public proceedings in a regulations project and would require that people interested in commenting would have the opportunity to present comments orally as well as in writing. She added that currently that is optional for agencies and boards. REPRESENTATIVE JOHNSON referred to someone calling in to an agency with a comment on a proposed regulation and asked if that spoken testimony must be recorded to be part of the official record. MS. POLLARD answered that there is a requirement in the APA that an agency "take a hard look" at comments received during a regulations project; a complex regulations project attracts a great deal of written information; and the agency would document the receipt of comments while responding to them. She added that when DOL reviews a regulations project, it must have evidence that it complied with each statutory procedure, which includes an affidavit from the person handling the regulations project that oral and written comments were considered. REPRESENTATIVE JOHNSON asked if under the proposed legislation, oral comments would be recorded verbatim and entered into the record. MS. POLLARD pointed out that page 10 of DOL's Drafting Manual for Administrative Regulations was included in the committee packet. She explained that this page advises agencies on handling public hearings; the agency must have a plan for keeping a record of the public comments received. She gave as examples transcription by a court reporter or staff notes. 4:02:20 PM REPRESENTATIVE BIRCH stated that he supports the proposed legislation because it addresses both written and oral testimony. He mentioned that some people will call in repeating the testimony they gave in an email. He said that the proposed legislation offers more opportunity for testimony. He stated that he also supports eliminating the requirement for publishing notification [of proposed regulation change] in newspapers to save money. 4:03:17 PM CHAIR KREISS-TOMKINS opened public testimony on HB 190. 4:03:28 PM PAMELA SAMASH testified that she supports HB 190 because of her experience with the Alaska State Medical Board (ASMB). She stated that she was denied the opportunity to provide oral testimony on a regulation that was important to her and "a matter of life or death." She said she asked ASMB for the opportunity to provide oral testimony but was only allowed to give written testimony by email. She said she was concerned that ASMB members would not read all the written testimony they received. She maintained that because the issue being considered by ASMB was "lethal and dangerous to human life," she wanted to be sure that each member of ASMB heard her testimony. She asserted that ASMB never agreed to hear oral testimony, and she said that she hopes the members read most of the emailed testimony. She said that she felt "powerless and silent" regarding a vote that was very important to her and to "hundreds and thousands of future very innocent people." 4:05:25 PM REPRESENTATIVE KNOPP asked Ms. Samash where she looks for proposed regulation changes - the online site or the newspaper. MS. SAMASH replied that she has received notice through the newspaper, but for the regulation to which she was referring in her testimony, she received notification through the internet. 4:06:34 PM CHAIR KREISS-TOMKINS, after ascertaining that there was no one else who wished to testify, closed public testimony on HB 190. 4:06:45 PM CHAIR KREISS-TOMKINS announced that HB 190 would be held over.