Legislature(1997 - 1998)
05/08/1997 08:00 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
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
SHORT TITLE: REPORTS & RECORDS OF & TO STATE AGENCIES
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
committee.
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.
Wilcox.
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
that."
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
there."
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
regulation."
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.
ADJOURNMENT
Number 1445
CHAIR JAMES adjourned the House State Affairs Standing Committee
meeting at 8:25 a.m.
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