Legislature(1997 - 1998)

05/08/1997 08:00 AM House STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        HOUSE STATE AFFAIRS STANDING COMMITTEE                                 
                     May 8, 1997                                               
                      8:00 a.m.                                                
MEMBERS PRESENT                                                                
Representative Jeannette James, Chair                                          
Representative Ethan Berkowitz                                                 
Representative Fred Dyson                                                      
Representative Kim Elton                                                       
Representative Mark Hodgins                                                    
Representative Ivan Ivan                                                       
Representative Al Vezey                                                        
MEMBERS ABSENT                                                                 
All members present                                                            
COMMITTEE CALENDAR                                                             
HOUSE BILL NO. 265                                                             
"An Act relating to pamphlets, publications, plans, and records of             
state agencies; and relating to reports to and from state agencies             
and the governor."                                                             
     - MOVED CSHB 265(STA) OUT OF COMMITTEE                                    
HOUSE BILL NO. 264                                                             
"An Act providing for a negotiated regulation making process; and              
providing for an effective date."                                              
     - HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE                                
(* First public hearing)                                                       
PREVIOUS ACTION                                                                
BILL: HB 265                                                                   
SPONSOR(S): REPRESENTATIVE(S) MARTIN, Dyson, Ryan, Cowdery, Kott,              
Davies, James                                                                  
JRN-DATE      JRN-PG              ACTION                                       
04/28/97      1371     (H)  READ THE FIRST TIME - REFERRAL(S)                  
04/28/97      1371     (H)  STATE AFFAIRS                                      
05/06/97               (H)  STA AT  8:00 AM CAPITOL 102                        
05/06/97               (H)  MINUTE(STA)                                        
05/08/97               (H)  STA AT  8:00 AM CAPITOL 102                        
BILL: HB 264                                                                   
SHORT TITLE: NEGOTIATED REGULATION MAKING                                      
SPONSOR(S): REPRESENTATIVES(S) JAMES, Berkowitz, Cowdery, Kemplen              
Jrn-Date    Jrn-Page           Action                                          
04/25/97      1343     (H)  READ THE FIRST TIME - REFERRAL(S)                  
04/25/97      1343     (H)  STATE AFFAIRS, FINANCE                             
04/26/97               (H)  STA AT 10:00 AM CAPITOL 102                        
04/26/97               (H)  MINUTE(STA)                                        
04/28/97      1383     (H)  COSPONSOR(S): BERKOWITZ                            
04/30/97      1427     (H)  COSPONSOR(S): COWDERY, KEMPLEN                     
05/06/97               (H)  STA AT  8:00 AM CAPITOL 102                        
05/08/97               (H)  STA AT  8:00 AM CAPITOL 102                        
WITNESS REGISTER                                                               
CHRISTOPHER KNIGHT, Researcher                                                 
  to Representative Terry Martin                                               
Capitol Building, Room 502                                                     
Juneau, Alaska  99801-1182                                                     
Telephone:  (907) 465-3783                                                     
POSITION STATEMENT:  Testified in support of HB 265.                           
WALTER WILCOX, Legislative Assistant                                           
  to Representative Jeannette James                                            
Goldstein, Room 222                                                            
Juneau, Alaska  99801-1182                                                     
Telephone:  (907) 465-8819                                                     
POSITION STATEMENT:  Provided information on HB 264.                           
DEBORAH BEHR, Assistant Attorney General                                       
Legislation and Regulations Section                                            
Office of the Attorney General                                                 
Department of Law                                                              
P.O. Box 110300                                                                
Juneau, Alaska  99811-0300                                                     
Telephone:  (907) 465-3600                                                     
POSITION STATEMENT:  Provided information on HB 264.                           
ACTION NARRATIVE                                                               
TAPE 97-59, SIDE A                                                             
Number 0001                                                                    
CHAIR JEANNETTE JAMES called the House State Affairs Standing                  
Committee meeting to order at 8:00 a.m.  Members present were                  
Representatives James, Berkowitz, Dyson, Elton, Ivan and Vezey.                
Representative Hodgins joined the meeting at 8:10 a.m.                         
HB 265 - REPORTS & RECORDS OF & TO STATE AGENCIES                              
CHAIR JAMES announced the first order of business was House Bill               
265, "An Act relating to pamphlets, publications, plans, and                   
records of state agencies; and relating to reports to and from                 
state agencies and the governor."                                              
CHAIR JAMES stressed that it was her desire to move HB 265 out of              
Number 0062                                                                    
REPRESENTATIVE IVAN IVAN made a motion to move HB 265 from the                 
committee with the attached fiscal note(s).                                    
CHAIR JAMES indicated that everybody likes the bill on both sides              
of the issue.  However, she noted a proposed committee substitute              
was being offered.                                                             
Number 0090                                                                    
REPRESENTATIVE IVAN withdrew his motion to move HB 265 out of                  
committee.  There was no objection.                                            
Number 0140                                                                    
CHRISTOPHER KNIGHT, Researcher to Representative Terry Martin,                 
testified on behalf of Representative Martin, sponsor of HB 265.               
Mr. Knight said, "The difference between the CS and the original               
bill is just -- in a couple of areas on an E-mail between a staffer            
of ours, John Manly, and the Governor's Office, Angelo Woodenpoogle            
(ph) - and it just points to two little sections that weren't                  
repealed.  But the departments wanted them repealed.  That's the               
only difference, a small technical change."                                    
Number 0174                                                                    
REPRESENTATIVE FRED DYSON moved to adopt the proposed committee                
substitute for HB 265, 0-LS0927\E, as the working document.  There             
was no objection, that version was before the committee.                       
Number 0197                                                                    
REPRESENTATIVE IVAN made a motion to move the proposed committee               
substitute for HB 265, version 0-LS0927\E, out of committee with               
individual recommendations and attached fiscal note(s).  There                 
being no objection, CSHB 265(STA) moved from the House State                   
Affairs Standing Committee.                                                    
HB 264 - NEGOTIATED REGULATION MAKING                                          
CHAIR JAMES announced the next order of business was House Bill                
264,  "An Act providing for a negotiated regulation making process;            
and providing for an effective date."                                          
Number 0266                                                                    
WALTER WILCOX, Legislative Assistant to Representative Jeannette               
James, addressed the committee on behalf of Chair James, sponsor of            
HB 264.  He referred to the information dated May 8, 1997 and                  
pointed out the sectional analysis was prepared by the Office of               
the Attorney General and noted the amendments could be found on                
pages 13-20.  Mr. Wilcox indicated they were working closely with              
the Administration.  He said it looks like a good bill that would              
benefit everyone.                                                              
MR. WILCOX suggested that the committee members consider changing              
the title to cooperative rulemaking.  It appears the attorney                  
general pointed out negotiated rulemaking sounds like you are                  
giving away something.  Mr. Wilcox said the legislature cannot do              
this when they are working on statutes.  He also mentioned the                 
legislature cannot negotiate the laws.                                         
MR. WILCOX reported that the departments have all made comments and            
that Deborah Behr, Assistant Attorney General, would be briefing               
them.  He said, "We'd also like to turn it into a three, four, or              
five page bill. -- The Office of the Attorney General has spoken               
with Nebraska and Montana, which currently use this, and it's not              
being used as much as anticipated because it's too cumbersome."                
MR. WILCOX continued, "You will note that there are some amendments            
on pages 2-20, mostly dealing with changing conclusive to the word             
majority."  He also indicated that there is an amendment on                    
immunity to committee members, and an amendment on how to do a                 
substitution for a no-show.                                                    
MR. WILCOX said he was asked to address the issue of                           
confidentiality of private business records.  He concluded, "And               
they've done so, we don't think it's adequate."  He mentioned they             
would be addressing that issue during the interim.                             
Number 0437                                                                    
CHAIR JAMES asked how many fiscal notes are either zero or starred.            
MR. WILCOX replied, "All of the fiscal notes are zero or starred.              
There's one representing all (indisc.) all other agencies, there's             
one for the Revenue, and one for Law."                                         
Number 0460                                                                    
REPRESENTATIVE DYSON asked Chair James what the plan is for HB 264.            
Number 0472                                                                    
CHAIR JAMES replied, "The plan is we're working hand and glove with            
the Administration throughout the interim to come back with this               
bill come January, next year, to have a draft that we believe will             
work.  That will improve the regulation making process by up-front,            
especially in conflictive areas, to cooperate - if that's a good               
word that we decide on - to get an awful lot of the problems out of            
the way before the end.  And we're planning on working on it.  I               
would hope that each member of State Affairs will take an active               
role in helping us get this through the interim."                              
Number 0536                                                                    
CHAIR JAMES believed the important issue is that both the                      
legislature and Administration can cooperate to make regulation                
making less controversial, more effective and assist in the running            
of our government.                                                             
Number 0657                                                                    
DEBORAH BEHR, Assistant Attorney General, Legislation and                      
Regulations Section, Office of the Attorney General, reported on               
some of the research she had completed since the last committee                
meeting.  She specifically asked the agency's attorney to check                
with the departments to find out what they thought about the bill              
and if they had anything in particular they wanted her to focus on.            
Ms. Behr said, "What I got back was pretty much what Walt [Mr.                 
Wilcox] said. (Indisc. -- background noise), but I hope that we can            
reduce the complexity, reduce the cost over the interim to                     
encourage people to use this more often."                                      
MS. BEHR indicated she received some suggestions from the                      
departments, but generally received a very positive response.  She             
also indicated she would go over these during the interim with Mr.             
MS. BEHR said Representative Pete Kott stated that it might be                 
helpful to do something so that we can have negotiated rulemaking              
inside the public comment period.  Ms. Behr added, "That requires              
that we be very careful with all the public (indisc.) watching and             
see it; that that's something we can look at this summer if the                
committee has some interest in that."                                          
MS. BEHR indicated the Department of Environmental Conservation                
(DEC) had an interest in being able to negotiate after the close of            
the public comment period with stakeholders - people who comment on            
the regulations.  She added that it is very difficult under the                
existing Administrative Procedure Act for them to call a meeting of            
people who commented and say, for example: "Did we get it right?               
Do you like it?"                                                               
MS. BEHR said, "There are some down sides of that in terms of that             
the public - who might have commented on the change (indisc.).  The            
way DEC would like to do it would not necessarily have notice of               
it.  So, there is up and down sides that we need to discuss about              
MS. BEHR stated the Department of Revenue believes negotiated                  
ruling, in their area, may be confusing to the public since they               
cannot negotiate on most of the things - like what is the tax                  
break.  They have to follow the law.  Ms. Behr said, "They were                
looking at things like affective rulemaking, cooperative rulemaking            
- so that the public is not given the idea that they can waive                 
statutes, because they can't."                                                 
MS. BEHR continued, "They also had a concern under the bill.  Right            
now, it requires the department to identify all interest(s)                    
affected by the regulations."  She stressed that some of their                 
regulations are impossible to identify, like the permanent fund                
dividend regulation.  She explained, "Every time you do a change in            
the permanent fund dividend regulation, there's always some                    
unattended group that we didn't know was out there that gets                   
affected by something.  And so, what may be more appropriate is to             
have someone nominate themselves.  And I am willing to represent               
the districts rather than having the commissioner identify all the             
interests.  And there's a possibility of someone coming back later             
and saying to the commission, oh, you missed this (indisc.) because            
your commissioner wasn't aware."                                               
MS. BEHR indicated several departments came back with the idea of              
cutting costs and making it a totally volunteer board: even if                 
there is no per diem, no travel costs paid, et cetera.  She said               
some people may not be able to participate under that                          
understanding.  But given the budgetary circumstances, that may be             
something to consider.                                                         
MS. BEHR said, "Revenue also suggested as an alternative, so that              
maybe, -- that's what I call a menu of options for state agencies              
to use.  They want to make sure that their option of using                     
workshops is still preserved because what they would like to do is:            
rather than have a group of people that you have to check with                 
everybody and make sure their schedules are available - and if they            
have a problem, do they have a designee - because noticing up a                
workshop - a publicly noticed workshop - that anybody who wants to             
come can participate in that workshop - offer their comments."  She            
believed that might reduce costs in setting up meetings.                       
MS. BEHR stated those are issues that particular departments                   
focused on.                                                                    
MS. BEHR said she was asked by Representative Dyson to particularly            
speak with the Department of Transportation and Public Facilities              
(DOT/PF).  She noted that DOT/PF was interested in this idea and               
cooperative rulemaking may be helpful for them.                                
MS. BEHR stated she agreed with the amendment which takes out                  
boards and commissions because there is a real difficulty in saying            
who can negotiate or speak for a board or commission.  She                     
specified that the Division of Occupational Licensing, Department              
of Commerce and Economic Development, would have concerns with HB
264 if boards and commissions were still included.                             
MS. BEHR said, "One of the amendments that I discussed, but was not            
picked up, is [that] you want to include -- a lot of the fish and              
game regulations are done by the boards of fish and game, but some             
are done by the commissioner.  Given the time frame the                        
commissioner needs to operate, does this cooperative rulemaking                
system work for them, or is it something we don't want to give the             
public a hope that we can negotiate on things when the seasons are             
too compact.  Is it really an appropriate thing to have them in                
MS. BEHR reiterated that all the fiscal notes are zero or starred.             
She said, "We believe that everything in here is basically                     
optional, but we would like to reduce the steps to encourage state             
agencies to do that."                                                          
MS. BEHR contacted the attorney general's offices in Montana and               
Nebraska and expressed that both of them came back with what Mr.               
Wilcox reported.  She reiterated, "It's not being used that much               
because it's too cumbersome.  And any way that we could do to                  
reduce it would probably be beneficial."                                       
MS. BEHR checked with the ethics attorney because she had some                 
concerns about dealing with a negotiated rulemaking committee and              
having stakeholders there, such as hospitals that do their own rate            
settings.  She said, "There are so few hospitals in the state, and             
that result is they may be setting their own hospital rates by                 
MS. BEHR said the ethics attorney thought it was appropriate since             
they are only an advisory board.  She said, "You disclose on the               
record -- the committee decides to allow you to vote and then you              
go forward.  So, he did not see a problem with having that                     
expertise on the board because it was an advisory board."                      
MS. BEHR referred to the amendment on immunity.  She said they                 
hoped this would encourage more people to volunteer to serve on                
boards and commissions.  She said, "There's an amendment in there              
regarding consensus, moving it down to majority.  Right now, the               
bill is written with consensus.  And I did some research on the                
models -- most of the models I was very surprised do - they have               
consensus and then they do some sort of a little report.  And I                
still think - I think if you have to go to (indisc.) clause                    
(indisc.), unless you go to regular majority - and minority would              
work.  And that is in the amendment that Walt [Mr. Wilcox]                     
suggested to you."                                                             
MS. BEHR asked the committee how they wanted this to work with                 
existing advisory boards.  She referred to a conversation she had              
with Mr. Wilcox and added, "Each of the 'revisory' boards (indisc.)            
- some of them are in fact just global planning agencies and really            
do very little work with regulations.  So we may want to have                  
negotiated rulemaking there.  Or it may be just another cost                   
slowing down regulation change that people maybe decided if the                
advisory board is enough."                                                     
MS. BEHR noted HB 264, uses the Administrative Journal as a primary            
notice provision for committees.  She was informed by the Office of            
the Lieutenant Governor that the Administrative Journal is on the              
Internet.  She said, "But it's not really a primary way to get                 
information. ... I would just allow the commissioner to do                     
reasonable notice under the circumstances.  If that means when the             
commissioner goes to speak before a mining group and says, 'Hi, I'm            
interested in mining.  I'm going to set up a negotiated rulemaking             
committee.  Do you want to volunteer?  Let my office know.'  And               
then maybe doing a newsletter, structurally with something like                
that."  Ms. Behr stressed she would do her best to try to minimize             
cost.  She believed the bill may be a little insufficient since she            
does not know how many "mom and pop" day care centers would be in              
the Administrative Journal, but thinks it may be zero.                         
MS. BEHR said, "Also, when the committee comes out with a                      
recommendation, you are -- the commissioner is essentially supposed            
to notice, as I gather it, notice of it once she has a legal                   
problem with it.  There may be other reasons why the commissioner              
might not want to notice up a regulation.  Walt [Mr. Wilcox] and I             
were talking about things like fiscal implications.  Somebody may              
come up with something that might be perfectly legal, but the state            
of Alaska can't afford it.  Do you still want the commissioner to              
notice that up?  My suggestion would be to just -- legal or other              
obligations, or legal or other considerations, or something - leave            
it broad."                                                                     
Number 1171                                                                    
CHAIR JAMES gave Ms. Behr a special thank you for her work on HB
264 for the record.                                                            
REPRESENTATIVE DYSON interjected, "I can't see that these folks are            
off course."                                                                   
Number 1230                                                                    
CHAIR JAMES noted there are glitches in legislation because of the             
way legislation is passed.  She said she believes by using the                 
cooperative up-front method of putting the regulations in to                   
implement the statute will point out errors in the statute.  She               
indicated the legislature could come back the following year and               
fix it.  She indicated that they find it is distressing because it             
does not accomplish the goals that it was intended to.  Therefore,             
the regulations that come out of that process are distressing                  
because that is not what people expected the law to do.                        
CHAIR JAMES concluded that it includes more public process but she             
believes it could be done in a way that will be less costly in the             
end.  She said, "And certainly, if we could do any little thing to             
take away the distress that people have with government in general,            
that will be a move in the right direction."                                   
Number 1307                                                                    
REPRESENTATIVE ELTON asked, "Can you negotiate a rule, I guess                 
we're calling cooperative now.  Can they do business on                        
teleconference and can they vote on teleconference."                           
MS. BEHR responded saying, "If not, I'll make absolutely sure they             
can.  That's a good suggestion."                                               
Number 1332                                                                    
CHAIR JAMES appointed Representatives Berkowitz, Hodgins and                   
herself to a subcommittee to work on HB 264 during the interim.                
Number 1445                                                                    
CHAIR JAMES adjourned the House State Affairs Standing Committee               
meeting at 8:25 a.m.                                                           

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