01/15/1998 08:12 AM House STA
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
January 15, 1998
8:12 1.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ethan Berkowitz
Representative Fred Dyson
Representative Kim Elton
Representative Mark Hodgins
Representative Ivan Ivan
MEMBERS ABSENT
Representative Al Vezey
COMMITTEE CALENDAR
HOUSE BILL NO. 264
"An Act providing for a negotiated regulation making process; and
providing for an effective date."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 264
SHORT TITLE: NEGOTIATED REGULATION MAKING
SPONSOR(S): REPRESENTATIVE(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
05/06/97 (H) MINUTE(STA)
05/08/97 (H) STA AT 8:00 AM CAPITOL 102
05/08/97 (H) MINUTE(STA)
01/15/98 (H) STA AT 8:00 AM CAPITOL 102
01/15/98 (H) MINUTE(STA)
WITNESS REGISTER
WALTER WILCOX, Legislative Assistant
to Representative Jeannette James
Alaska State Legislature
130 Seward Street, Suite 222
Juneau, Alaska 99801
Telephone: (907) 465-6819
POSITION STATEMENT: Provided information on CSHB 264(STA).
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: Testified on CSHB 264(STA).
TERESA OBERMEYER
3000 Dartmouth Drive
Anchorage, Alaska 99508-4413
Telephone: (907) 278-9455
POSITION STATEMENT: Spoke on issues unrelated to CSHB 264(STA).
JOHN LINDBACK, Chief of Staff
Office of the Lieutenant Governor
P.O. Box 110015
Juneau, Alaska 99811-0015
Telephone: (907) 465-3520
POSITION STATEMENT: Spoke in support of HB 264.
BARBARA LABOLLE, President
Alaska State Chamber of Commerce
217 Second Street, Suite 201
Juneau, Alaska 99801
Telephone: (907) 586-2323
POSITION STATEMENT: Spoke in support of HB 264.
ACTION NARRATIVE
TAPE 98-1, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:12 a.m. Members present at the
call to order were Representatives James, Berkowitz, Dyson, Elton,
and Hodgins. Representative Ivan arrived at approximately 8:15
a.m.
HB 264 - NEGOTIATED REGULATION MAKING
Number 0079
CHAIR JAMES announced the only item of business was House Bill 264,
"An Act providing for a negotiated regulation making process; and
providing for an effective date."
Number 0100
WALTER WILCOX, Legislative Assistant to Representative Jeannette
James, Alaska State Legislature, addressed the committee on behalf
of Representative James, sponsor of HB 264. Mr. Wilcox referred to
the committee member's packets which included the original bill and
the history associated with it, sponsor statements, definitions of
negotiated rulemaking, Alaska regulation adopting process, the
Montana version of negotiated regulation making, the Nebraska
negotiated rulemaking act, the federal government negotiated
Rulemaking Act, the administrative code from Nebraska, agency
fiscal notes, a sectional analysis, and a proposed committee
substitute for HB 264, State Affairs.
Number 0166
CHAIR JAMES made a motion to adopt proposed committee substitute 0-
LS0910\B, Bannister, 11/17/97. There being no objection, Version
B was before the committee.
Number 0214
MR. WILCOX said, "HB 264 enables and encourages negotiated
regulation making. At the request of the Office of the Attorney
General, through Deborah Behr, we believe that rulemaking might be
a better name than regulation making. As regulation making,
through negotiation process sounds like maybe regulations are for
sale or trade, which is not the case. A negotiated rulemaking --
that just sounds better, we believe. It's used by the federal
government, the state of Montana, and the state of Nebraska. As
you're all aware, the citizens of Alaska feel embroiled in too many
regulations and excluded from the regulation making process. This
bill's intent is to include the people of the state of Alaska, at
all levels, and impact of people(s) into the regulation making
process. It's designed to be used in the most complex regulations
that cost lots of money. It would not be used in the mundane
adoption of regulations that nobody has any beef with."
Number 0296
MR. WILCOX explained that it is a voluntary process for drafting
regulations. It brings the impassive parties together, including
the government and outside agencies that have interest in the
specific regulation. The idea is to reach a consensus on some, or
all, of the aspects of the rule before it is formally published as
a proposal. He said it brings in the public, impacted industries,
and special interest groups into the regulation making process
before the regulations are cast in concrete and put out for general
public input. The agency head can choose a committee Comprising of
individuals who have been identified as interested parties. The
idea being not to exclude any of the interested parties. A
mediator, or facilitator, or convener is used in appropriate
aspects as delineated in five pages of the committee substitute.
The committee substitute lays out how this committee would be
formed and how it would function.
Number 0384
MR. WILCOX expressed it would appear to create more technically
accurate, clearer and specific, and less likely to be challenged
regulations - challenged by litigation of course. For example,
Title 17, the Department of Transportation and Public Facilities
(DOT/PF) redrafted 204 pages of leasing regulations that was
unanimously opposed by hundreds and hundreds of users. He believed
it was unanimously opposed, and in fact was a topic of a meeting at
the Regulation Review Committee. Subsequent to the examination by
the Regulation Review Committee, the regulations were rewritten.
Mr. Wilcox believed it was mostly to the satisfaction of impacted
parties. DOT had more than $120,000 in the regulation writing up
to that point. He said they could have saved a lot of that money
had they involved the 'majors' and the interested third parties in
the regulation making process prior to casting it in concrete.
Number 0477
MR. WILCOX said it was his understanding that the commissioners,
Administration, and the Office of the Attorney General have all
signed off on HB 264 as a workable bill. However, acknowledge
there may be some flaws in it. We are here today to solicit input
on what we could do to make this process better, more equitable,
more fair and more workable.
Number 0508
MR. WILCOX concluded they should have zero fiscal notes from all
agencies. This should be a benefit to the agencies rather than a
detriment. He explained this type of a process is currently being
used, on a limited scale, with success in a couple of the state
agencies. He believed Janice Adair, Director, Division of
Environmental Health, Department of Environmental Conservation has
successfully used working groups to help promulgate regulations.
He said, "It seems like a valuable tool and it would only be a
supplemental tool. It would not be required. It would be up to
the agency head to decide whether this tool would be used. It is
intended to be an adjunct to a process in large scale regulation
writing."
Number 0570
REPRESENTATIVE ETHAN BERKOWITZ noted that he is a cosponsor. He
asked, "The other three statutes involved: the Montana, the
Nebraska, and the federal statutes all include a notice requirement
about the proposed rulemaking - that's not included in the
committee substitute we're looking at?"
Number 0600
MR. WILCOX responded yes it is. He explained the Administrative
Procedure Act (APA) notice requirements will not be changed in the
committee substitute. Mr. Wilcox referred him to line 16 on page
4, AS 44.62.310 apply to meetings of a negotiated regulation making
committee. So the APA notice requirements would be required to be
used.
Number 0667
REPRESENTATIVE BERKOWITZ asked if that would cover the expressed
notice requirements that the other statutes specifically adopt in
the context of their negotiated rulemaking policies?
Number 0687
MR. WILCOX replied our Administrative Procedure Act may or may not
follow theirs exactly, but ours is the one we operate under and
we're not interested in opening up the APA as that is a can of
worms. So we will be happy to incorporate the APA requirements
into this regulation and not change.
Number 0698
REPRESENTATIVE BERKOWITZ believed the Nebraska statutes have
provision for a petition to use negotiated rulemaking committee.
He asked if there were any similar provision in HB 264.
Number 0717
MR. WILCOX confirmed that it was up to the agency head. He stated,
"The agency head can be petitioned, of course. How the request
gets to the agency head is driven by whoever might be interested in
bringing it to his attention. This is intended to be people
driven." For example, if Alaska Airlines had a problem with the
regulation, and they didn't like it, at this point they can go the
commissioner and say, "Commissioner, we'd like to be involved in
the regulation writing process." However, in the past they would
have been precluded from doing that.
Number 0745
REPRESENTAIVE BERKOWITZ wanted to assure that anyone who feels they
have a stake in the process, has access to the process.
Number 0746
MR. WILCOX mentioned as an example, you have an activist out here
who is just generally an activist. They would be, if they
requested, allowed to sit at the table.
Number 0760
REPRESENTATIVE BERKOWITZ asked, "And they would be aware of the
process because notice had been given that rulemaking was in the
works?"
Number 0778
MR. WILCOX replied the notice under the Administrative Procedure
Act will be followed. The commissioners' jobs depend upon it.
Number 0780
REPRESENTATIVE KIM ELTON asked if they would be using the term
negotiated rulemaking rather than negotiated regulation making. He
noticed negotiated regulation making was being used throughout the
bill.
Number 0789
MR. WILCOX replied that Deborah Behr, Office of the Attorney
General, would be addressing that. He said, "What we don't want to
do is have people -- be able to come into an agency and have any
doubt in their minds about what a regulation is." For example, if
a person got a speeding ticket, he couldn't go to the Department of
Public Safety and ask to negotiate the regulation.
Number 0820
REPRESENTATIVE ELTON asked, "If the determination is going be made
by an agency head on whether or not they hire a mediator or
convener, or something, do you anticipate that agency head may in
some instances say, 'wait a minute, (indisc.) my budget doesn't
accommodate going out and contracting with somebody to do this.'
Do you anticipate that an agency head in some instances my say
'we're not going to do this because it's going to cost my agency
budget some money?"
Number 0854
MR. WILCOX replied if an agency head can substantiate, to the
public where he is coming from, they can do anything they choose.
He believed bringing the public into the process. If they don't
like the decision an administrator or head of an agency makes, they
can certainly appeal it to the press, to the legislators, or to the
constituency of that particular agency head.
Number 0878
REPRESENTATIVE ELTON understood that but wondered if in some
instances you may be getting a bureaucratic decision not to do this
because they don't want to go out and spend the money to hire a
mediator or a convener.
Number 0890
MR. WILCOX said, "We're hoping to have most of it voluntary - for
the mediators and the conveners. We're trying to keep this a low
budget option. I believe in high profile cases that cost lots of
money. For instance, Title 17 Airport rewrite, air legislation,
water legislation, and timber legislation that gets turned into
regulations. They spend hundreds of thousands of dollars on
regulations. This may actually be much cheaper for them, if it's
a controversial enough item." Mr. Wilcox suggested getting the big
controversial items resolved at the first step, rather than winding
up making regulations that are challenged in court, that cost much
more than trying to head off the problems before they get cast into
concrete. He said, "To answer your question directly, yes, the
commissioner can abuse the process."
Number 0946
REPRESENTATIVE ELTON stated he would not call it abusing the
process. In some instances you could call it being fiscally
conservative. He mentioned he supported the legislation.
Representative Elton said, "If you want disinterested conveners,
and you were coming to me and asking me to work either in water
regulations or timber regulations, I'd run away from you so quickly
because that is a tough job. And disinterested party doing it for
no pay - good luck."
Number 0980
CHAIR JAMES stated for the record that she has been working hard on
this issue for six or eight years trying to find some way to make
regulations in this state less controversial. She said, "When you
talk to the public, and I've talked to a lot of them, one of the
things they really dislike is the regulation process. They
believe that the legislature passes laws and the regulations don't
implement the law. Many times they do, and there is authority
there because the legislature has given them authority. One of the
things in having this opportunity before the regulations are
crafted is, it gets some of those sticky things out of the way, or
keeps them from being put in the regulations, so that there
challenged afterwards. And we know lots of regulations - in fact,
I have been working on some [Department of] Revenue regulations
since 1993 and there still not completed - on oil taxes. And so,
you know it's a problem to get things that will work and will not
be challenged in court. Regulation writing is probably one of the
most difficult things there is to do. If you try to sit down in
your house and write a policy of how you handled every issue in
your house, you would find out how difficult it is to write a road
map of implementing the statutes."
CHAIR JAMES reiterated that it was her goal to make it more
acceptable by the public. She said when the public is dissatisfied
it costs much more money for government. When the public is
satisfied things are less expensive. The federal government in
using the regulation rulemaking process has found that, even though
it may be more expensive up-front because you have added costs for
getting these people together. That there is less litigation and
fewer problems after the regulations have been crafted and that the
net result is less money spent. She anticipated this is the way
this would work.
Number 1201
MR. WILCOX said, "A specific on-point example though would be in
Title 17, airport leasing regulations, once again. I maybe not
exactly correct on the number, but I believe the words 'in the
manager's discretion' was in there over a hundred times. Had that
been addressed up-front the majors in the aircraft industry may
have accepted the regulations but there was too much arbitrary,
capricious, and possibly discriminatory latitude within that type
of language.... Alaska Airlines and Japan Airlines said, 'wait a
minute you can't say that you're going to set fees based upon the
manager's discretion.' It would have become obvious to the people
writing the regulations that wasn't going to fly. And in the long
term it didn't fly but it took a lot more money, time and energy
from the political entity here plus the impassive private sector
people."
Number 1151
CHAIR JAMES made reference to the mining industry, particularly in
1979 and 1980, when actually things changed for the mining industry
because of environmental concerns and so forth. And at that time
she told a lot of her clients, "If you want to be sure that what
they tell you to do is going to work, you better start telling them
now and figure out how to make it work because when the regulations
came out they wouldn't work when you get them on the ground because
they were drafted by people in office who had not actually been out
there physically doing it. This is why we want to be sure that the
regulations that are written work and that we don't' run into
problems after they become part of law because changing regulations
is every bit as difficult once they've been entered into law. Ever
bit as difficult as it is making them in the first place. We want
to make it a smoother operation, more publicly accepted, more
workable, and less expensive."
Number 1201
MR. WILCOX felt there was a lot of confusion relating to permits.
He stressed this is not a bill to involve the public in the
permitting process, such as the major mine permits, prior to
determinations being made that are generally not public. This is
for regulation promulgation only and not for permit issuing.
Number 1226
CHAIR JAMESadded, "For the writing of administrative codes which is
administrative law."
Number 1230
REPRESENTATIVE MARK HODGINS asked if this is a voluntary type
process as far as the agencies are concerned. He also asked who
actually makes the decisions as to how the committee is made up.
He questioned whether there is not or is not a limit on the size of
the committee.
Number 1248
MR. WILCOX replied the agency head would make the decisions as to
how the committee is made up. He said, "We discussed that with the
Office of the Attorney General and there is a practical size to
where you can crumble under your own weight. The agency head has
quite a bit of power here to make a committee work."
Number 1265
REPRESENTATIVE HODGINS felt the work that comes out of this would
just be a suggestion, it wouldn't actually be something that they
would have to adhere to.
Number 1290
MR. WILCOX responded, "That is correct. The ideas brought forth by
the committee would hopefully expedite the streamlining and the
usefulness of the regulations, but it would not be required. The
commissioner could out of a hand reject - say he has a
controversial bill and everybody was on one side and he felt that
was completely wrong, he could do the opposite. We did leave an
area in there for judicial appeal."
Number 1297
REPRESENTATIVE HODGINS indicated the agency head could also limit
participation by certain folks.
Number 1309
MR. WILCOX believed that would be difficult to do. He said, "Once
you've opened that process to the public, eliminating a certain
sector of the public is not politically acceptable. We have a lot
of trust and faith built into this. And we trust the public to
know when they are being treated fairly and when they're not being
treated fairly. And they expect the public to come forward when
they feel they are not being treated fairly."
Number 1322
REPRESENTATIVE BERKOWITZ said, "Maybe I misunderstood before, maybe
we weren't communicating clearly, but it's somewhat on the lines
what Representative Hodgins had a concern about, that is how
members are selected for these committees. The section you
referred me to on page 4, Item F, is ironically the Open Meetings
Act. And notice is provided for the open meeting itself, but
that's distinct from notice that the rulemaking is going to take
place and that interested parties should submit application in
order to be part of this rulemaking committee. Which the other
statutes do express they provide for."
Number 1359
MR. WILCOX deferred that question to Deborah Behr since she is a
lawyer. He stated that Representative Berkowitz is a lawyer and he
is not.
Number 1375
REPRESENTATIVE FRED DYSON asked why not make this process
mandatory.
Number 1393
CHAIR JAMES replied, "We don't want a fiscal note."
Number 1406
MR. WILCOX indicated that only in very large arenas would this
really be necessary, and where there is going to be public
controversy. There can be very large regulations that will not
generate public controversy, for example, with insurance
regulations that are 25 pages thick that nobody really cares about
because they are federal pass-throughs, it would not make any
sense. He said, "I think we're flagging this up the flagpole to
see if it will be used, and how extensively used, and hopefully
only on the most major cases of regulation writing. This is an
experiment, it's got a five-year drop dead date to see whether it
worked or not."
Number 1375
REPRESENTATIVE DYSON stated part of the answer to his question is
that if you made it mandatory it would be really clumsy to have to
do a negotiated process on a whole bunch of very minor housekeeping
type things.
Number 1438
MR. WILCOX gave Medicaid as an example. He said most of those flow
through - a specific - from the federal government.
Number 1446
REPRESENTATIVE DYSON informed the committee he had a brief
appointment and excused himself at 8:36 a.m.
Number 1468
REPRESENTATIVE IVAN IVAN said, "I'm going to go back probably 10 to
15 years and bring out some of the different constituency that
we've had in the prior years in dealing with the Alaska Native
families and children, especially in the small communities like my
home Akiak. And I think we've come a long way - negotiating and
talking Division of Family and Youth Services [Department of Health
and Social Services] in adoption of children and social services
being provided, foster care for some of the children. And a lot of
work has been done and in most cases some of the issues -
negotiations had to go before the district court judges in some
cases. What impact would this have in even furthering the good
progress that has been made up to date. What impact does this
negotiated rulemaking have, or am I too far deep into the existing
regulations."
Number 1534
CHAIR JAMES replied it appears that a lot of the work you've done,
and it's been successful, could have been less work done early on
in the regulation writing process had this bill been there and
encouraged. She believed that in the future, if there is a change
in the regulations relating to those issues and given the
experience that they've had with needing input from the affected
parties, that quite likely those changes might be done under a
negotiated rulemaking process which means that you would be called
into the process before the rules changed so that you could have
influence in some of the changes that would be made.
Representative James said, "That really is the basic difference
here. That's the step in the process. After the regulations are
drafted, in a first draft, and the notice is sent to the public for
their response that procedure goes on as usual. Hopefully the
little quirks in there, that the public would be rejecting to will
have been taken care of before that so that those processes will be
more smoothly done and taken less time and be less costly."
Number 1600
CHAIR JAMES announced that Representative Ivan has been appointed
vice chair of the House State Affairs Standing Committee and that
he has accepted that position.
REPRESENTATIVE HODGINS said jokingly he would like to suggest a
section be put in the bill to make this retroactive on some of the
regulations [laughter].
Number 1629
CHAIR JAMES responded we have a regulation review committee, you
may do that there.
Number 1635
MR. WILCOX said, "One section has been added, civil immunity for
members of negotiated regulation committee, that's Section 2 on
page 7. I'd like you to note that and discuss that with Deborah
Behr, Office of the Attorney General, and I know that some of you
are interested in that." He also requested that Ms. Behr address
the APA question raised by Representative Berkowitz.
Number 1660
DEBORAH BEHR, Assistant Attorney General, Legislation and
Regulations Section, Office of the Attorney General, Department of
Law said, "I have handled regulations matters for a number of
years. I'm now focused on legislation for the governor. I wanted
to go over the efforts of the Administration this summer on HB 264,
and the result of that is the [proposed] committee substitute which
you have today. The suggestions that the Administration made to
improve the bill are all contained in here, none of them were
rejected. The task force - we had a group of agencies look at the
bill summer. We had several meetings and we came out with a bill
that we believe more workable, less bureaucratic and less costly.
That was primarily our goals."
Number 1703
MS. BEHR expressed, "Our position is generally one, this is a
voluntary tool and it's totally workable in appropriate
circumstances. Some of the agencies are using it now with some
success. There are some agencies that this may not work for and
were quite realistic of it, Military and Veteran Affairs for
example. I think some of the things we do would just not work out
well with negotiated rulemaking. Since it's a voluntary tool, the
agencies can use it in appropriate circumstances and I'm glad we
had a discussion on that. Things like fee increases, it would be
pretty hard to have a discussion on fee increases, the legislature
has said a certain amount of money needs to be made up and the
regulations are just promulgated from that. So, it's not
appropriate in those circumstances but most of the literature
indicates when it is appropriate it's a very helpful and successful
tool."
Number 1743
MS. BEHR continued, "Some of the things that I wanted to point out
to you today is that what we did do in the bill was attempt to
reduce costs. By one way was allowing state agencies to use
impartial employees in the convening and intervening - and the
negotiating process. For example, if the Department of
Environmental Conservation (DEC) wanted to use an employee of
another department, or another department who - in DEC that has not
worked on the issue to do negotiation that would be okay under this
bill, under the prior bill it would not."
Number 1767
MS. BEHR indicated HB 264 limits payments of cost for travel and
per diem to only essentials - when it's necessary to pay it.
Before, the bill was much more open-ended. She said, "We wanted to
reduce costs and recognize and encourage the use of
teleconferencing when appropriate and this bill does do that kind
of a change."
Number 1785
MS. BEHR said they wanted to make absolutely clear in the bill that
this doesn't preclude other things that are working right now in
the regulatory process such as public hearings. She indicated some
of the departments are using workshops, some of the departments are
holding public meetings to explain the regulations and this bill
does not change that, it just provides another tool that's
appropriate in the development of regulations.
Number 1798
MS. BEHR noted that she had received a couple questions about
sidestepping. She confirmed the APA does not. Ms. Behr said,
"This is in the presteps before the regulation goes out for public
comment, so all the steps of the Administrative Procedure Act must
be met. And you can see that very clearly on page 1, line 9. It's
in lawyer talk but it says 'Negotiated rulemaking is not a
substitution form that's just fancy words for them noticing comment
of requirements of the Administrative Procedure Act."
Number 1828
MS. BEHR indicated the bill does provide a new provision on
immunity and referred the members to page 7, line 13 through 17.
She said, "The reason why we suggested that was to encourage,
especially private businessmen, to be willing to volunteer their
time to serve on these committees and not have this kind of a tort
damage suit possibly hanging over their decision. Frankly, I feel
that we could probably get most of these folks out anyway because
their doing policy level decisions. But this may be an extra
protection for the suit not being brought initially. And from
someone who feels they are disadvantaged by the regulation, when
the committee gives a proposal it still goes through the whole APA
process. They can go and comment to the commissioner, the
commissioner can weigh those comments and make an appropriate
decision. So there is a public forum after the negotiations
committee gives its report."
Number 1856
MS. BEHR pointed out that the negotiation committee must meet in
public and indicated there is an open meetings act provision for
this. If there is not a consensus, which is 100 percent of the
people sitting at that table agreeing, there's a minority and
majority report that are offered to the commissioner. The
commissioner can take the provisions of what they think are
appropriate.
Number 1867
MS. BEHR referred to the recommended changes in the bill on page 6,
lines 20 through 27. She said, "We did limit the definition of
agency. Before it basically was covering all executive branch
agencies. We eliminated the Department of Corrections for fairly
obvious reasons. The Commissioner of Corrections should not be
sitting down negotiating with prisoners over prison conditions, on
access to space, and things like that."
Number 1891
MS. BEHR continued, "I also had eliminated a number of multi-member
boards and commissions. And, it's primarily a practical reality of
how do you get one person from the Board of Education to be able to
speak for the Board of Education, commit the Board of Education.
Everybody on there is on there for their expertise, and so
therefore, those agencies are exempted from that."
Number 1905
MS. BEHR referred to the Coastal Policy Council. She said their
representative, on this group, asked that they be included so they
are. Ms. Behr said, "So that's the primary limitation of it. We
didn't think it would work well for the first round in multi member
bodies. Also, as was mentioned earlier, if you look at the very
end of the bill in pages 26 through 28 there is in essence a time
limit, a sunset provision. So that we can come back and, the
public can come back to you and say, 'This is a great idea, it's
working. Or, it's not working and let's fix it.'"
Number 1935
MS. BEHR responded to Representative Berkowitz question. She said,
"The bills that I looked at in the prior version of the bill did
have a very formalized process on how members of this committee are
selected. It required us to put something in the Administrative
Journal. It required a time period for people to comment on it.
We basically decided in a state as small as Alaska - we know who
the players are, we know the players reputation, and if people have
a problem with whose on their, they know how to get a hold of their
legislator or they know how to get a hold of the commissioner and
can say, 'Look, we really want a different representation. Since
the process is totally voluntary, we didn't think this step was
necessary. And their was a cost to it, and there was a delay
process because in most of the bills there's a 30-day [period]
while people are commenting on it."
Number 1976
MS. BEHR announced it does not remove any provisions of the APA.
So where people have problems with existing regulations, like
Representative Hodgins mentioned, there is a provision in the
existing APA to petition for regulation changes in the APA. That
does not change. The meetings are open to the public and the
public can come and certainly comment to them. She said, "There
was some question about making this mandatory. I can tell you page
2, lines 28 through 30, basically the commissioner has to make a
decision up-front before he or she is going to spend the money for
this committee. But they will in essence, to the maximum extent
possible with their other obligations, use the consensus of it. An
so, to me, it's an up-front decision - if I were the commissioner
of a particular department I would choose whether it was
appropriate, whether - and then do my best within my legal
obligations and other obligations to use the consensus. But the
consensus still must go through the public process. So, for
example, the committee doesn't really necessarily aware of all the
issues - and the state, people can come in through the regular APA
process and comment on them."
Number 2015
REPRESENTATIVE HODGINS asked, "Is there any membership standard or
requirement?"
Number 2020
MS. BEHR replied, "There is not, and the reason why is we figured
the commissioner would pick people who have widely diverse
interests so that they will have a report that they can use at the
end. If you look at the original house bill that was brought in,
it had very - all the issues had to be identified and it had much
more of a bureaucratic process. I can tell you the committees that
I've had to work with over the years, the commissioners go out of
their way to make sure everybody is represented."
Number 2040
REPRESENTATIVE BERKOWITZ thanked Ms. Behr for all the hard work she
has done. He asked, "About the notice, one of the concerns, and
one of the reasons of why we're doing this negotiated rulemaking is
to preclude litigation down the road. And one of the ways to
preclude litigation is to make sure that everyone, who might
possibly have a complaint against regulations, is included at the
table. And I'm a little concerned that without some sort of formal
mechanism, when people are invited to sit at the table, that that
might all been possible challenge to the rulemaking later on."
Number 2063
MS. BEHR replied, "The answer I can give you is one that I can
never promise the regulation won't be tested in court. And so even
if you have everybody - you open up to a public meeting, anyone in
Alaska can come to that public meeting. Someone who doesn't come
to the public meeting can still come and sue and say they have a
problem with it. I don't think - the process brining - there's
noting legally wrong with having a process to propose nominees.
That's there only - a possibility, but there is a cost with it,
there is a delay with it. And in Alaska with as open a government
as we have in terms of letters coming into legislators, letters
coming into the governor, letters coming into the commissioner, if
there's any problem with it I'm sure you'll hear about it or the
sponsor will hear about it and then you can do some kind of
investigation to it. And you can always add committee members
later, if you start with a committee and somebody says, 'Oh, I'm
sorry you don't have a representative from a particular area of the
state you can always add one to the committee.' There's nothing
that precludes that later on if it's not workable."
Number 2109
REPRESENTATIVE BERKOWITZ said he also asked about the petition for
negotiated regulation that was used in another state. It seemed to
him this offers an opportunity for citizens, or people who might be
interested, to petition the governments so they can have this form
of regulation making. He stated that it is not included expressly
in HB 264.
Number 2128
MS. BEHR responded, "First of all, you're absolutely right, it was
in the original house bill, a provision for petitioning for
negotiated rulemaking. The committee that I worked with decided
that wasn't necessary because there is a provision in the APA right
now for anybody to petition for any kind of rule change. And as a
process of it, they can say, 'Hey, I think negotiated rulemaking
wasn't appropriate in this case.' I don't think we need a legal
process statute. There's nothing here that says you can't ask for
it. So, we did not think it was necessary. I don't have a legal
problem with it being in there."
Number 2155
CHAIR JAMES said, "I think that my general attitude as to what
works better, it works better if you don't tell people they need to
do something, and if they volunteer. It just seems to me like
that, and we do have to have a structure of government, without a
doubt, but there's less conflict and so forth if we go forward and
are treated fairly at all levels. And when you start putting the
rules down on paper there's no way to cover everyone's interests
and somebody gets left out. And it's in writing you can't alter
it. So I think that having it flexible, and of course, after using
this for awhile if we find that it doesn't work, we always have
that opportunity to come back and fix it. But I'd rather leave it
more open in the beginning because I believe that that will cause
less conflict then if we try to write it down. As an attorney,
Representative Berkowitz, you ought to know that the attorneys have
the responsibility of covering almost every issue because if they
leave something out then they leave a hole for somebody to jump
into. But people who are not attorneys don't operate that way. We
like to have as much that is there by a handshake as possible and
when that doesn't work then we'll describe on paper - how we should
offer it. That's the difference between legal and non-legal
mentality."
Number 2201
REPRESENTATIVE BERKOWITZ jokingly said, "Well, I've always operated
on a handshake, that's why I'm not an attorney anymore."
(Laughter).
Number 2218
REPRESENTATIVE HODGINS said, "I guess I do have one question and a
concern of somewhat, and that's if you can add people without any
requirements, you can also take people off without any
requirements. And while I appreciate the fact that there would be
political and public pressure brought to bear, it concerns me a
little bit that somebody might be removed off this committee unless
I've read this wrong."
Number 2240
MS. BEHR referred to page 3, line 13 and 14, and read, "members
serve at the pleasure of an agency head." She said, "So that to me
is serving at the pleasure, so if someone is not attending meetings
the commissioner can say, 'I'm sorry, I'd like someone here that
attends meetings.' I think it's one of these things where if a
process is working well, I can't see a reason why a commissioner
would want to take someone off." She clarified that the bill right
now has it at the pleasure of the agency, so your observation is
absolutely legally correct.
Number 2258
REPRESENTATIVE ELTON made reference to page 2, line 8. He said,
"It does say an agency may determine that the use of a negotiated
rulemaking, a process could occur. I'm curious as to whether or
not a regulation could be challenged simply because the agency did
not use the process. Can someone come in and say, 'You should have
used this negotiated rulemaking process, and you didn't, therefore
we challenge the regulation.'"
Number 2274
MS. BEHR referred to page 5, lines 30 through 31, and on top of
page 6, an agency action relating to establishing, negotiated
rulemaking is not subject to judicial review. She said she had
some questions frankly from Attorney General Bruce Botelho, saying
why is that there? Why I don't have a problem with it is that the
decision to do negotiated rulemaking is totally discretionary, what
would a court look at? The public interest is protected because
the regulation itself has to go through the whole public process
and if someone still has a problem with the regulation (indisc.)
they can challenge it at that point.
Number 2306
REPRESENTATIVE BERKOWITZ made reference to the confidentiality
requirements on page 6. He said, "Seems to me the presumption is
that the owner of the records will permit release of confidential
information. It seems to me it would be better if there were a
requirement that the owner does not request that the information be
released instead of written the way it is."
Number 2328
MS. BEHR replied, "We put this in because there was no provision
for confidentiality in the original bill. And in the regulatory
process, generally when someone comes to petition government, as
when they come to you to testify before a committee, it's generally
in a public process, it's very hard for you to go into executive
session in the legislation process. This is similar in the
regulations process. We felt it was somewhat different because
when a private business is impacted by a regulation, for example,
the one that I could think was the dental board was interested in
doing some regulations regarding the use of lasers in their
offices. And dentists were objecting because they bought the
equipment and had assumed that their paraprofessionals could use
it, and the board was thinking no, that was not appropriate, it
should be done at the highest professional level. A dentist under
current regulations right now, if they wanted to come to the board
and say, 'You're hurting my business, and the board wanted to hear
whether or not financial records of that board, there's no way in
my mind that they can get information (indisc.) process and make it
confidential. If an agency was covered by negotiated rulemaking,
someone could come in with private records that we're using in
developing regulations and ask that they be kept confidential."
Number 2382
REPRESENTATIVE BERKOWITZ expressed that was his point, you have to
ask for confidentiality. That should be presumed. He believed
most people who have small businesses want to be asked if the
information is going to be released. He said, "That way, if the
information is going to be released it's done with the knowledge
that the information is going t be released."
Number 2399
MS. BEHR said, "If you look at the language - as reports from -
records from private people that are requested or used by
negotiated rulemaking committee shall be kept confidential if they
contained proprietary information, and the owner or records
requested, the documents are kept confidential. The reason why the
request provision is in there is there some businesses that file a
lot of proprietary information that is public and they don't have
a problem with that. My general presumption is the public has a
right to know what government does. I can think of some businesses
where they file documents in serval places where their information
is public. It is proprietary information but they really don't
care. And so, that allows them to come in and claim their
privilege. The privilege generally is (indisc.) for records should
be - the presumption is in favor of public and that the public has
a right to know what government is doing and not all proprietary
records absolutely are confidential. And so for somebody wanting
to claim confidentiality they should assert it."
Number 2410
REPRESENTATIVE BERKOWITZ said, "My concern though is, if I have a
small business and my proprietary information is going to be
released because I perhaps testify, it might chill my - it might
discourage me from testifying. And I think that I should have the
control over when my information is going out to the public without
interfering with my ability to make a presentation to the public.
I think this is something that allows the individual to keep the
government from having too much access to information."
Number 2455
CHAIR JAMES indicated, having been a small business person and
having been in public accounting business for so long and dealing
with all the different kinds of small businesses, she understood
exactly what Representative Berkowitz said. She said, "However, I
also agreed that there is a presumption that when you come to
testify or do anything in a public forum, and these meetings are
open....(indisc.)"
TAPE 98-1, SIDE B
Number 0001
CHAIR JAMES continued, "Everything the government does is open to
the public, we have the freedom of information. So unless you
specifically say that what you're providing in this committee is to
be kept confidential, or you won't reveal it and you think it's
necessary to be able to support your position, then I think there
is a presumption in government that everything is open, it ought to
be. And I agree with Representation Berkowitz statement that we
like to have government out of our faces as much as possible, but
we also want government in our faces as much as possible because
the government is us. And so we have a common interest of being
able to know and we want our right to know. And so I believe - I
support the way it is written and I understand your concerns. But
I really believe people need to know when they're involved in a
government process that there is an opportunity for them to keep
their information confidential and that they need to say so,
because, otherwise it's presumed that it will be public."
Number 0035
REPRESENTATIVE HODGINS said, "Getting back to my earlier question
on the - bringing other regulations under this law, you said that
regulations could be nominated to do that. What - could you
quickly give me that mechanism - how established regulations."
Number 0045
MS. BEHR responded it is in the Alaska Procedure Act, it is
existing law. She said, "Even if HB 264 doesn't pass, if you have
a constituent that has a problem with the regulation, there is a
petitioning process under the APA for regulations that are covered
by that act. Where a private person, anyone can petition and write
a letter to the adopting authority and say that they want to change
the regulation. There's a little bit of formality - such they have
to say what regulation they want to change and why they want to
change it, things like that. But, even if this bill were not to
pass, that avenue is still in the statutes right now."
Number 0064
CHAIR JAMES concluded, it's true, even if their request is not
recognized because the Administration has an opportunity to respond
and say that their request was not valid, and that there is no
reason to do it. There is an appeal process. They could continue
up to take their issue further.
Number 0076
MS. BEHR indicated there always is the avenue of the court. Most
people who have a change also might have an avenue into court and
they can always go to court.
Number 0085
REPRESENTATIVE BERKOWITZ referred back to impunity. He asked, "You
specified it's on page 7, line 14, tort damages, does this allow
for recovery of contract damages?"
Number 0090
MS. BEHR responded, "I don't quite understand where there would be
contract damages. Just because the person normally - the people on
the committee would not have a contract with the person who was
supplying information, or whatever. I don't understand - I don't
have a problem if you want to delete the word tort, that doesn't
bother me at all. I was trying to narrow it to the typical types
of damages that you would have when people want to bring a claim
about their interesting hurt which is - damage in some other way.
I don't have a problem with it, I don't see a need for it."
Number 0113
REPRESENTATIVE BERKOWITZ said, "Apparently is written too. It
seems to me it would be better to carve out an exception that the
immunity only applies to unless there is - I believe in the
original version that the chair put forward specified if there is
gross negligence, recklessness or intentional misconduct."
Number 0121
MS. BEHR explained the original bill had no tort immunity at all.
Number 0134
REPRESENTATIVE BERKOWITZ said, "There was amendment though, that
you offered at one point. It's on page 17 of the packet."
Number 0141
MS. BEHR stated she did not have a problem with that kind of
language going back in there. However, she didn't necessarily know
why it is necessary. She said, "The kinds of actions that these
people would be doing are not - for example driving cars and
running over people. They are sitting at a meeting and coming out
with a proposed possible policy for a commissioner to notice up for
regulation." Ms. Behr said she did not have a legal problem with
something like that being put in there.
Number 0158
CHAIR JAMES asked if the committee were to put that in, where would
they put it. Or would we have to rewrite it.
Number 0166
MS. BEHR said I think you may, and I can work with your legal
council on it.
Number 0175
REPRESENTATIVE BERKOWITZ made a motion to adopt the amendment to
incorporate the amendment that Chair James put together. He
referred to page 17 of the packet and replace Section 2 on page 7,
with the language.
Number 0188
MS. BEHR stated the replacement is a very clean amendment, and she
did not have a legal problem with it - it is a policy decision.
Number 0197
CHAIR JAMES said, "The motion before us is the conceptual amendment
including what's on page 17 of the amendment for Section 44.52.785
on immunity. The issue is the switch from - in the language of
immunity. Do you want to look at that, it is changing the
language. The motion to exchange the immunity clause that's on
page 17 in the packet for the one on page 7, line 12. That motion
is before us." Chair James asked if there is an objection to the
motion. There being no objection, the motion was approved.
Number 0263
REPRESENTATIVE HODGINS asked what the next referral was for HB 264.
Number 0270
MR. WILCOX replied that the next referral was House Finance if
there is no fiscal notes. He said, "I'll get the chair's
[Representative James] permission to request a waiver at finance
and go right to the floor."
Number 0286
TERESA OBERMEYER said, for the record, she is very fearful of the
government and has lost total and unequivocal faith in the
government. She continued to speak about issues that didn't
pertain to the legislation the committee was discussing.
Number 0561
CHAIR JAMES called Ms. Obermeyer out of order.
Number 0632
JOHN LINDBACK, Chief of Staff, Office of the Lieutenant Governor,
came before the committee to speak on behalf of the Lieutenant
Governor's Office. He said he is testifying because the Office of
the Lieutenant Governor is the lead agency on bills related to
regulatory reform. He indicated the Office of the Lieutenant
Governor shares the concerns voiced by Chair James about public
dissatisfaction with the regulatory process. He said, "The
Administration is very interested and excited about the prospect of
negotiated regulation making and are quite pleased about the
development of this bill."
Number 0691
MR. LINDBACK complimented Ms. Behr for educating the agencies and
creating interest in this process. Mr. Lindback believed, if the
bill does pass, there will indeed be a positive interest by all
state agencies in looking at this new process and using it.
Number 0698
MR. LINDBACK continued, "We do have a concern about costs, and I
appreciate your bluntness madam chair in saying that the reason
that there are no mandatory provisions in the bill is because of
that issue. We would like to encourage your committee and the
legislature to consider, however, an appropriation for this bill as
an incentive for agencies to use negotiated regulation making.
Exactly how you would do that, I would be glad to discuss, but I
think it would be helpful because in my observations of the
meetings last summer there is a fear of costs. As I've stated with
this process within the agencies, and that it may well act as a
disincentive to jump in and try to use it. And that if there was
an appropriation somewhere in state government, either with our
office or with Office of Management and Budget, specifically for
agencies to apply expenses for negotiated rulemaking process, it
may well move us down the road faster to agencies trying it and
using it and liking it. And I will hold my observations here. We
like the bill."
Number 0776
CHAIR JAMES said, "What I would like to do, since this is early in
the session and the proposed committee substitute has been out in
front of everybody just this week - other members of the
legislature and so forth - I don't want to be doing what is rushing
it through and then leaving somebody in the path that says, 'I
didn't have a chance to look at it." Chair James stated she would
like to carry it over to the next meeting.
Number 0793
PAM LABOLLE, President, Alaska State Chamber of Commerce, commended
the committee and the Administration for working well together.
She referred to Mr. Lindback's comment regarding a fiscal note that
would provide an incentive for agencies. She said, "I think the
fact that it is mandatory, and doesn't have a cost is also
laudatory. And I think that the incentive for the agency should be
the ability and the opportunity to quality rulemaking. And the
cost savings that will probably be recognized and achieved by not
having to go further into deeper, more complicated processes by
solving some problems up-front. So I think it's a fine piece of
legislation and we support it."
Number 0871
REPRESENTATIVE HODGINS said, "I would want to let folks know that
the public pressure, that can be put forward to making this
mandatory - to bring this mechanism to be engaged in regulations -
I think the same pressure that would be used to object can also be
use to (indisc.) steps forward by getting a hold of legislators and
pushing this." He said we can request the agency heads to get
involved with this action. He believed it would be very beneficial
and hopefully, with no appropriation of funds.
Number 0907
CHAIR JAMES stated CSHB 264 would appear on the next calendar and
that she wouldn't resist taking public testimony because they have
not had a lot of notice.
Number 0956
CHAIR JAMES stressed that she would like to move the bill the
following next week. If there are no fiscal notes, it go directly
to the House floor for a vote. She indicated that it would be
effective immediately, the minute it is signed by the Governor.
She said, "There may be some things that we are doing this year, I
think that now that we've decided that this is what we need to do,
we need to get it there and start seeing how it's going to work."
CHAIR JAMES indicated HB 264 would be held for further
consideration.
ADJOURNMENT
Number 1070
CHAIR JAMES adjourned the House State Affairs Standing Committee
meeting at 9:26 a.m.
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