Legislature(2003 - 2004)
05/04/2004 09:07 AM Senate FIN
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
May 4, 2004
9:07 AM
TAPES
SFC-04 # 105, Side A
SFC 04 # 105, Side B
SFC-04 # 106, Side A
SFC 04 # 106, Side B
CALL TO ORDER
Co-Chair Gary Wilken convened the meeting at approximately 9:07 AM.
PRESENT
Senator Lyda Green, Co-Chair
Senator Gary Wilken, Co-Chair
Senator Fred Dyson
Senator Ben Stevens
Senator Donny Olson
Senator Con Bunde, Vice-Chair
Senator Lyman Hoffman
Also Attending: SENATOR GENE THERRIAULT; REPRESENTATIVE KEVIN
MEYER; REPRESENTATIVE DAN OGG; PATRICK GAMBLE, President & CEO,
Alaska Railroad Corporation, Department of Revenue; RICHARD
SCHMITZ, Staff to Senator John Cowdery; CINDY CASHEN, Executive
Director, Mothers Against Drunk Driving, Juneau Chapter; DON SMITH,
Administrator, Alaska Highway Safety Office; LINDA SYLVESTER, Staff
to Representative Bruce Weyhrauch; SUE HARGIS, Boating Safety
Specialist, United States Coast Guard; JACK CADIGAN, Captain,
United States Coast Guard Retired, and Representative, United
States Coast Guard Auxiliary; VANESSA TONDINI, Staff to
Representative Lesil McGuire; DOUG WOOLIVER, Administrative
Attorney, Office of the Administrative Director, Alaska Court
System; MICHAEL LESSMIER, Attorney, State Farm Insurance; LINDA
HALL, Director, Division of Insurance, Department of Community and
Economic Development; BARBARA COTTING, Staff to Representative Jim
Holm; DEBRA BEHR, Assistant Attorney General, Legislative &
Regulations Section, Office of the Attorney General, Department of
Law; DAVE STANCLIFF, Staff, Administrative Regulatory Review
Committee, Office of the Senate President Gene Therriault; PORTIA
PARKER, Deputy Commissioner, Office of the Commissioner, Department
of Corrections
Attending via Teleconference: From Anchorage: SARA HEIDEMAN,
Attorney representing the Native Village of Eklutna; From Seward:
RON LONG; From an Offnet Site: BARBARA BRINK, Director, Public
Defender Agency, Department of Administration; JENNIFER YUHAS,
Executive Director, The Alaska Outdoor Council; From Mat-Su: CLIFF
JUDKINS, Chair, Alaska Boating Association; JERRY MCCUNE,
Representative, United Fishermen of Alaska and Cordova Fishermen
United
SUMMARY INFORMATION
SB 254-TOURISM & RECREATION ASSESSMENT
The Committee heard from the sponsor, adopted a committee
substitute, and reported the bill from Committee.
SB 395-MUNICIPAL LAND USE REGULATION
The Committee heard from the sponsor and the Alaska Railroad
Corporation. Public testimony was taken, and the bill was held in
Committee.
SR 3-COMMEMORATING SEN. FRANK FERGUSON
The Committee heard from the sponsor, adopted one amendment, and
reported the bill from Committee.
SB 224-LOWER DWI FOR MINORS TO .02
The Committee heard from the bill's sponsor, Mothers Against Drunk
Driving, the Public Defender Agency, and the Alaska Highway Safety
Office. The bill reported from Committee.
HB 93-BOATING SAFETY, REGISTRATION, NUMBERING
The Committee heard from the Sponsor, the United States Coast
Guard, and took public testimony. One amendment was considered, but
not adopted, and the bill reported from Committee.
HB 227-DISTRICT COURTS & SMALL CLAIMS
The Committee heard from the sponsor and the Alaska Court System.
The bill reported from Committee.
HB 336-MOTOR VEHICLE INS./ UNINSURED DRIVERS
The Committee heard from the sponsor, the Department of Community
and Economic Development, and the insurance industry and reported
the bill from Committee.
HB 419-REGIONAL SEAFOOD DEVELOPMENT ASS'NS./TAX
The Committee heard from the sponsor, the Department of Community
and Economic Development, and the industry. One amendment was
adopted and the bill reported from Committee.
HJR 44-SEA OTTER RESEARCH/ENDANGERED SPECIES
The Committee heard from the sponsor and reported the bill from
Committee.
HB 424-REGULATION REVIEW / ANNULMENT
The Committee heard from the sponsor, the Department of Law, and
the Regulatory Review Committee. The bill reported from Committee.
HB 484-CORRECTIONS: FEES/SURCHARGE
The Committee heard from the Department of Corrections and the bill
reported from Committee.
HB 533-IF UNREAS. AGENCY DELAY, COURT DECIDES
The Committee heard from the sponsor, the Regulatory Review
Committee, and the Alaska Court System. The bill was reported from
Committee.
HB 511-CERTIFICATE OF NEED PROGRAM
This bill was scheduled but not heard.
CS FOR SENATE BILL NO. 254(L&C)
"An Act relating to the levy and collection of an assessment
on certain tourism-related and recreation-related sales,
leases, and rentals, to tourism marketing contracts, and to
vehicle rental taxes; relating to Alaska marine highway system
passenger fares; and providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken pointed out that this legislation would reduce the
level of the tourist industry's match requirement as currently
specified in the Millennium Plan. by changing He noted that a new
committee substitute, Version 23-LS0947\Z is before the Committee
for consideration.
AT EASE: 9:11 AM / 9:11 AM
SENATOR GENE THERRIAULT, the bill's sponsor, informed the Committee
that while the original purpose of this legislation was to further
funding mechanisms through which the tourism industry could be
assessed to support marketing efforts "to make the State of Alaska
a destination," the Version "Z" committee substitute reflects that,
due to industry outfall and such things as the industry's inability
to generate funds equivalent to the 60-percent level mandated in
the tourism marketing Millennium Plan, the bill has been re-
directed to continue the current Millennium Marketing Plan and to
lower the required industry contribution to 50-percent.
Senator Therriault voiced appreciation, however, for the fact that
the industry does recognize the State's fiscal dilemma and is,
therefore, actively attempting to develop self-funding avenues to
market the State, even though the industry's original Millennium
Plan's assessment was unobtainable.
Co-Chair Wilken noted that a Department of Revenue zero fiscal
note, dated May 4, 2004 accompanies the Version "Z" committee
substitute.
Co-Chair Green moved to adopt the committee substitute, Version "Z"
as the working document.
There being no objection, the Version "Z" committee substitute was
ADOPTED as the working document.
Senator Bunde questioned the amount the State might spend as a
result of changing the tourism marketing plan to a 50/50 split, as
he pointed out that the Department of Revenue zero fiscal note
simply reflects the fact that the bill would not increase the level
of funding that the State has been spending in this regard.
Senator Therriault qualified that he did not have the funding
particulars with him.
Co-Chair Wilken understood the amount to be four million dollars.
Co-Chair Green clarified that the State's share of the expense
would be $2 million in FY 05.
Co-Chair Wilken acknowledged.
Senator Bunde understood therefore that the combined State/industry
marketing expenditure would amount to four million dollars.
Co-Chair Green moved to report the committee substitute from
Committee with individual recommendations and accompanying fiscal
note.
Senator Bunde objected.
Senator Bunde asked whether the original Millennium Plan had a
termination date.
Senator Therriault responded that it did not.
Senator Bunde removed his objection.
There being no further objection, CS SB 254 (FIN) was REPORTED from
Committee with a new zero fiscal note, dated May 4, 2004, from the
Department of Revenue.
CS FOR SENATE BILL NO. 395(TRA)
"An Act relating to application of municipal ordinances
providing for planning, platting, and land use regulation to
interests in land owned by the Alaska Railroad Corporation;
authorizing the Alaska Railroad Corporation to extend its rail
line to Fort Greely, Alaska; authorizing the Alaska Railroad
Corporation to issue bonds to finance the cost of the
extension and necessary facilities and equipment; and
providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken pointed out that this bill has two sections: one
would authorize the Alaska Railroad Corporation (ARRC) to issue up
to $500 million in tax-free revenue bonds to pay for a rail line
extension to Delta and Fort Greely; and the other would exempt land
owned by the Railroad from municipal land use regulations. He
pointed out that CS SB 395(TRA), Version 23-LS1965\H, and its
accompanying fiscal note were before the Committee.
Senator Therriault, the bill's sponsor, explained that the original
bill was developed in response to a recent State Supreme Court
ruling, Native Village of Eklutna v. Alaska Railroad Corporation,
regarding the Railroad's right to continue to operate a granite
quarry in the Eklutna area. Section 1, he continued, contains
language that would ensure that Railroad operations could continue
and not be subject to differing planning and zoning ordinances as
rail lines flowed from one community to another.
Senator Therriault recounted that the bill was expanded to include
bond package language that would fund extending the rail line to
Fort Greely with the possibility of connecting with Canadian rail
lines and continental lines in the Lower 48. He assured that the
bonding language would not jeopardize Railroad or State assets, as
long-term federal contracts would support the bond requirements. He
reviewed the planned route of the rail line as well as the goods
that could be transported on the line. He concluded that numerous
economic benefits would result were this rail line extended.
Co-Chair Wilken, noting that the bill sections were very "distinct
from each other," specified that the two sections would be
addressed separately.
PATRICK GAMBLE, President & CEO, Alaska Railroad Corporation,
Department of Revenue, communicated that there has been positive
response to the bonding proposal, as defined in Section 2, to
finance the rail line extension to Delta and Fort Greely. He stated
that the federal Department of the Army is interested in the
railroad extension as it would provide the Army greater access to
training areas as well as to land in the Fort Greeley area slated
for an expanded federal missile program to be staffed by the
National Guard. He conceptualized that the rail line "would serve
as a two-lane road" that could transport military personnel, their
families, and contractors, on a year-round basis. He declared that
this rail line extension is "very attractive" to the military.
Mr. Gamble explained that in order to fund the extension, the
Railroad would act as the bond fiduciary and use its tax-free
bonding authority, which has never been utilized before, for the
$500 million project. He stated that a portion of the bond debt
would conceptually be paid by usage contracts between the Railroad
and two separate federal military entities: the Department of
Defense Army and Missile Command, as, he explained, the contract
would be less expensive to the military than their annual
operations and maintenance (O&M) expense budgets would be were the
rail line extension not in place.
Mr. Gamble stated that while discussions have transpired with
military personnel within the State, they have not occurred with
the Department of the Army. He also noted that discussions with
affected Alaskan communities are scheduled in the near future.
Senator Bunde referenced comments indicating that the bond issuance
would not incur any expense to the State. However, he questioned
whether the fact that "the Railroad is an instrument of the State,"
would not make the State "the ultimate guarantor of these bonds."
Senator Therriault responded that due to the fact that "this is not
conduit funding," Senator Bunde is correct in that, were there a
default on the part of a State owned entity, the State would be
responsible. However, he declared that a default would be unlikely,
were a contract in place with the federal government. He pointed
out that language addressing the federal government agreement is
located in Section 4, Subsection (b) beginning on page two, line 30
and continuing through page three, line seven which reads as
follows.
(b) Before issuing bonds to provide the financing described in
this section, the Alaska Railroad Corporation shall enter into
an agreement with the United States government that will, in
the judgment of the corporation, provide sufficient
consideration to
(1) pay the principal of and interest on the bonds as
they become due;
(2) create and maintain the reserves for the bond
payments than the corporation considers necessary or
desirable; and
(3) pay all costs necessary to service or additionally
secure the bonds, including trustee's fees and bond insurance
premiums, unless those costs are to be paid by a party other
than the corporation.
Senator Bunde continued to voice concern, as he argued, the federal
government could change its position in regards to the contract.
Therefore, he asked, that were this a consideration, whether this
bond package could affect the State's bond rating ability.
Senator Therriault deferred to Mr. Gamble to address the affect the
bond package might have on the State's bonding ability. However, he
exampled that while one Legislature "could not bind" future
Legislators, the State would be obligated to fulfill any legal
contracts entered into. Similarly, he argued, that were federal
military plans to change and were the missile base dismantled, a
signed federal/State contractual arrangement would continue to be
honored.
AT EASE 9:27 AM / 9:27 AM
Senator Bunde voiced a wildlife resource concern as he reminded
that the Railroad currently has problems with moose on the rail
line. He questioned whether bison could pose a similar problem
along the proposed Delta area rail line route.
Mr. Gamble responded that the "good news" is that the geography of
this route is relatively flat and as such, would allow animals to
move out of the way of a train as opposed to the difficulty
presented to them by "the deep channels" that the train tracks have
in other areas of the State. He acknowledged that this concern must
be adequately addressed and the federal government must approve the
plan before contract negotiations are finalized.
Co-Chair Wilken, being "very familiar with the terrain" the
proposed rail line would transit, asked regarding the "physical
scope" of the project as described in Section 4, subsection (a) on
page two, lines 23 and 24 as he perceived the costs to be high. In
addition, he asked whether the project might extend beyond Fort
Greely.
Mr. Gamble specified that the $500 million project cost estimate is
all-inclusive in that it would sufficiently fund any required land
acquisition, existing rail line improvements, maintenance,
equipment, sidings, small depots, and the terminus of the rail line
at Fort Greely amongst other things. He pointed out that the
proposal also contains a "healthy contingency piece in the cost
estimate for engineering and construction." He noted that the
project cost also includes $45 million that would be used to
construct a bridge across the Tanana River to assist the military
in accessing their land. In summary, he concluded that, including
contingencies, the $500 million estimate is not a conservative
number.
Co-Chair Wilken asked whether the aforementioned bridge would be
located at Flag Hill Bridge.
Mr. Gamble concurred.
Co-Chair Wilken asked whether the bridge construction project would
additionally include a rail line extension into the Blair Lakes
area.
Mr. Gamble stated that, in addition to the main rail line being
extended toward Delta Junction, an 11-mile rail extension into the
Blair Lakes area would also be constructed in order to allow
military vehicles to be offloaded within the parameters of the
military training range rather than being offloaded and hampering
transit on the main rail line.
Co-Chair Wilken asked regarding the terminus slated for
construction in Fairbanks.
Mr. Gamble responded that in addition to a terminal at the Fort
Wainwright military base to accommodate military freight
operations, a passenger terminus would be constructed in Fairbanks.
Co-Chair Wilken requested that a complete project scope be
developed to accompany the bill.
Senator Therriault, referencing Co-Chair Wilken's question about
whether the rail line would be extended beyond Fort Greely, noted
that language in Section 4, subsection (b) on page two, lines 30
and 31, specifies that before the bonds could be issued, an
agreement between the federal government and the State must be in
place. Continuing, he noted that extending the line beyond Fort
Greely would not benefit the federal government and therefore, it
would not be expected that their contract would include anything
beyond that point.
Co-Chair Wilken noted that in previous years, discussions had
included building a rail line that would bypass the City of
Fairbanks. Therefore, he voiced concern, for the record, that
constructing an 11-mile spur line into the Blair Lakes area might
rekindle that discussion, which, he attested, "would not be in the
best interest of Fairbanks."
Co-Chair Wilken asked whether the selling of these bonds would
negatively affect the State's ability to bond for the gas pipeline.
Mr. Gamble responded no, as he reminded the Committee that the
Railroad's tax-free bonding ability is not subject to the bonding
limit of the State. In addition, he stated that this bond issuance
would not affect the Legislature's previous year's [unspecified]
authorization to allow the Railroad to issue bonds up to a 17-
billion dollar limit.
Co-Chair Wilken stated that the discussion would now shift to
Section 1, which pertains to local municipality regulations and
their applicability to the Railroad.
Mr. Gamble commented that the core issue of Section 1 might "be
misunderstood." He quoted from the Supreme Court ruling on the
aforementioned case that prompted this legislation as follows:
"because the Legislature did not clearly express its intent to
exempt the Railroad from local zoning laws, we reverse and remand."
Therefore, he communicated, the intent of this legislation is "to
request the Legislature to clarify itself for the good of the
Court" and thereby "reinstate the status quo" that the Railroad has
operated under since the original legislation was implemented 18-
years prior.
Mr. Gamble declared that the original bill enacted by the
Legislature was approved with the knowledge that federal law
exempts railroads conducting interstate commerce from local
planning and zoning regulations. He stated that that law "is
codified in federal law and remains "intact and exists today." He
argued that the State's Supreme Court determination that the intent
of the Legislature was unclear is wrong, as he submitted that the
Legislators "knew what they were doing" as attested by the fact
that the bill has been in effect for 18-years. With respect to the
Court, he stated that he agreed with "the three-to two hotly
contested" minority decision of the Court, and that the two
minority Court members "were very pointed" in their remarks that
the federal exemption "as mirrored by the State" should prevail for
economic development purposes," and that the Railroad, as an entity
of the State, should be controlled by the State rather than by an
array of differing local municipality planning and zoning
regulations. Were the Court ruling to be upheld, he argued, this
kind of local zoning "control over a State entity" would result in
economic chaos, as approval would be required for each local
municipality case. The Court ruling, he continued, would have
severe impact on commerce. He therefore, requested that the
Legislature clarify that the status quo mode of operation should
continue.
Senator Therriault supported the Railroad's request that the
Legislature clarify the intent of the 18-year old legislation. He
voiced support for the continuance of the Railroad's zoning
exemption, as he declared that requiring the Railroad to adhere to
13 different jurisdictional zoning and planning regulations would
create problems. He noted, however, that Section 1 could be amended
to address municipalities' concerns.
Senator Bunde understood the range of problems that might occur
were each municipality's regulations a consideration. He asked
regarding the comment that "the Railroad is a State agency and
should be under State control."
Mr. Gamble clarified that the Railroad is a State instrumentality.
He voiced that the Railroad's position is that any control over an
instrumentality of the State should be limited to the State.
Senator Olson pointed out that the reason for the Court's
involvement was due to the fact that numerous citizens feel that
the Railroad has been abusing its authority" in laying down track
and acquiring land for 500-foot right of ways without consideration
for those affected. He asked how these concerns would be addressed.
Mr. Gamble clarified that a 200-foot right-of-way is authorized,
and that most construction occurs on Railroad property. He informed
the Committee that the Railroad was awarded 36,000 acres of fee-
simple property when the ownership of the Railroad transferred from
the federal government to the State. He declared that 80-percent of
all Railroad construction projects encompass federal funding and
therefore, before any work on those projects could occur, an
audited "extensive community out-reach" process is required per
federal law. Therefore he attested that these projects have
"considerable public input."
Mr. Gamble noted that the majority of the 20-percent balance of
Railroad projects, not supported by federal funding, involves minor
things such as roof repair and "other nuts and bolts" non-
construction projects. He stated that he would be willing "to
address specific cases" in this regard; however, he voiced being
unaware of any situation in which the Railroad did not take public
concern into consideration.
Mr. Gamble acknowledged that public concern and speculation could
occur in regard to future Railroad operations such as whether the
Railroad might develop a gravel pit in a suburb or construct a
hotel that would compete with a another hotel. However, he assured
that, were federal funds involved in the development of a gravel
pit, it would not be located near a suburb. He also stated that the
Alaska Railroad Board serves as one component of the Railroad's
"check and balance system," and he noted that the Board's position
is that the Railroad is in the Railroad business. Therefore, he
noted that such things as the Railroad constructing a hotel would
not occur, as it would be outside of scope of things permitted by
the Board. In summary, he opined that these concerns are addressed.
Senator Olson shared that the primary concern he hears pertains to
the Railroad track leading to the Ted Stevens International Airport
in Anchorage. He stated that Railroad land in this area is
"sizable" and that it could be more appropriately utilized for
other transportation purposes.
[NOTE: Senator Bunde chaired the following portion of the meeting.]
Co-Chair Green recalled that the federal government, rather than
the Railroad, specified the land around the Anchorage airport as
Railroad holdings in order to address national airport security
concerns. She understood that the Alaska Department of
Transportation and Public Facilities was involved in this process.
Senator Olson voiced appreciate for this information as he could
now more adequately respond to public concerns.
Amendment #1: This amendment deletes the word "an" in Section 4,
subsection (b) on page two, line 31 and replaces it with "a
binding". Continuing in subsection (b) on page three, line one, the
word "will" is deleted and replaced with "shall"; and on that same
line, "in the judgment of the corporation" is deleted. Also on that
same line, "consideration" is deleted and replaced with "revenue".
The amended language would read as follows.
(b) Before issuing bonds to provide the financing described in
this section, the Alaska Railroad Corporation shall enter into
a binding agreement with the United States government that
shall provide sufficient revenue to…
Senator B. Stevens moved to adopt Amendment #1 and objected for
explanation.
Senator B. Stevens stated that this amendment would eliminate some
ambiguity in the language and would clarify the intent of the bill.
Mr. Gamble stated that the Railroad does not object to the
amendment.
Senator Therriault stated that this amendment would serve to
alleviate some concerns.
Senator B. Stevens removed his objection.
There being no further objection, Amendment #1 was ADOPTED.
SARA HEIDEMAN, Attorney representing the Native Village of Eklutna,
testified via teleconference from Anchorage in opposition to
Section 1 of the bill. She noted that the Village takes no position
on Section 2.
Ms. Heideman informed the Committee that another component
incorporated in the aforementioned State Supreme Court case is the
"balancing of interest test," which is a test that has been adopted
by the majority of national courts "to address the issue of
governmental immunity from zoning in the last 30 years." She stated
that this test has enhanced the public input process in regards to
zoning. She respectfully disagreed with Mr. Gamble that the intent
of Alaska Statute AS 42.40 is clear as she argued that sufficient
testimony regarding the adoption of this Statute did not indicate
that all Railroad land would be exempt from local zoning authority.
Continuing, she noted that the Legislature could have specifically
included exemption language in the Statute at the time, but chose
not to.
Ms. Heideman stated that the federal "Interstate Commerce
Commission Termination Act" referred to by Mr. Gamble "abolished"
the Interstate Commerce Commission (ICC), "placed restrictions on
State and local regulation of railroads and created the Surface
Transportation Board." She stated that this federal law specifies,
"that State and local economic regulations which would
significantly interfere with core rail operations is prohibited."
The meaning of this law, she continued, is that any attempt by a
State or local government to prevent the operation, construction,
or the discontinuance of a rail line would be prohibited by federal
law. Therefore, she explained that no local entity could block the
construction of a rail line to Fort Greely or regulate the track as
it transits from jurisdiction to jurisdiction. She stated,
therefore, that the Railroad is protected by federal law as well as
by the balancing test that was utilized by the Supreme Court. She
reiterated that an extension of a line, placement of a line,
whether to discontinue a line, the location of a train depot, and
other core things would be protected by federal law, and would
therefore not require the balancing test to be put into place.
Ms. Heideman stressed therefore, that, "there is a very finite
field within which local governments could regulate in regards to
the Railroad." This narrow field, she attested is that to which the
balancing test could be applicable. She stated that the Court's
implementation of this test "is very fair to everyone," in that it
would require the Railroad "to comply with local zoning when
compliance would not create a hardship for it…"
SFC 04 # 105, Side B 09:54 AM
Ms. Heideman reminded the Committee that Alaska Statute Title 35
mandates that, in a similar fashion to the federal ruling for the
railroad, the Alaska Department of Transportation and Public
Facilities must comply with local zoning ordinances but would be
immune from local zoning ordinances "in appropriate cases."
Ms. Heideman stressed that under the balancing test guidelines,
public and local officials are able to have input, in limited areas
that "are not pre-empted by federal law" in regard to the essential
operation of the Railroad.
Ms. Heideman declared that were Section 1 adopted, it would serve
to "eliminate all public input, all input from local governments,
and eliminate any need for Railroads to consider any legitimate
public or local interest." In addition, she pointed out that
immunity from local government zoning is not required in order to
operate a railroad. She noted that nationally, the majority of
railroad ownership is private, and she stressed that these
companies are not immune from local zoning ordinances and continue
to operate within and across multiple state lines.
Ms. Heideman declared that Section 1 would change "a system that is
not broken" and would deny public and local government from
infusing legitimate input. She urged that Section 1 be deleted.
Co-Chair Green asked for further clarification of language on the
testifier's handout titled "Historical Statement by Sara Heideman
(Hedland, Brennan, & Heideman) [copy on file]; specifically the
language located in the last paragraph that reads as follows.
It requires the railroad to comply with local zoning when it
can do so without hardship. It permits the railroad to obtain
immunity from local zoning when local zoning would interfere
with its operations.
Ms. Heideman commented that the balancing test would be applied
were the Railroad to seek immunity from a local zoning requirement,
after the Railroad made an attempt to comply with local zoning by
going to the local planning and zoning commission and applying for
a conditional use permit. Were this the case, the Court, she noted
would seek to balance the public's and Railroad's interest and
determine whether any local interference with Railroad operations
might incur. She stated that were the Railroad's interests to
outweigh the others, it would prevail in being immune from local
zoning. She shared that the balancing test evolved from a case in
New Jersey in which a state university attempted to place multi-
family housing in a community in which that zoning was not allowed.
She stated that, in that case, it was determined that abiding by
local ordinance would hinder the function of the university, and
the university was granted immunity. Therefore, she continued, were
the Railroad to prove that abiding by local ordinance would hinder
its ability to perform an essential State function, it would be
granted immunity.
Co-Chair Green understood that the balancing test would be applied
by the Superior Court, and therefore, she asked whether the non-
prevailing party could appeal the immunity determination to the
Supreme Court.
Ms. Heideman stated that either side could appeal the ruling.
Continuing, she noted that in a situation where the Railroad
prevailed, "it would not likely be hindered in its operation unless
the opposing party could, during the appeal process, show that it
could likely prevail on the appeal or" the opposing side could
prove it had the economic means with which to post a bond.
[NOTE: Co-Chair Wilken resumed chair of the Committee.]
RON LONG testified via teleconference from Seward on his own
behalf. He voiced support for Section 2, as it is, he declared, "an
exciting project." In addressing Section 1, he stated that, while
"the need for consistency across jurisdictional boundaries for
rights of way" might supersede those of local planning and zoning
commissions, it is important to recognize the rights of
municipalities pertaining to planning and zoning ordinance
variances as outlined in Title 29. This direction, he continued,
would allow the Railroad's essential services to be weighed in
relation to municipality interests. He stated that a process should
be developed that would consider the Railroad's right of way
interests as opposed to its real estate development interests. He
pointed out that a recent Department of Transportation and Public
Facilities (DOTPF) right-of-way model exemption would be a good
model as it addresses federal, State, and local discrepancies and
incongruities.
Co-Chair Wilken stated that, in his view, Section 1 "is
problematic." Therefore, he noted that the Committee has the option
of adopting the original version of the bill that does not include
Section 1 with the understanding that legislation addressing that
issue could be considered early in the next Legislative session.
Mr. Gamble stated that, as per the recent Court ruling in the
Eklutna case, the Railroad would be required to acquire a
conditional use permit for each forthcoming project that affects a
municipality and, were the local planning and zoning commissions
conditions not deemed to be in the best interest of the Railroad,
would be required to litigate each case utilizing the balancing
test. This, he shared, would serve to delay the process on a case
to case basis on "the entirety of the line." Continuing he attested
that, in addition to requiring municipalities and the Railroad to
agree on a project, the Court ruling has "opened the door" to allow
private individuals or private group to challenge a permit. He also
commented that "tying up a case" via challenges and appeals "is a
tactic" utilized by various groups. He reiterated that in addition
to the length of time required to conduct the permit process, the
litigation process would serve to further delay a project. He noted
that the Court ruling is not retroactive.
Co-Chair Wilken, while being sympathetic to the Railroad's concerns
as he recalled the delay experienced by the Pogo Mine operations
due to "tactics;" voiced concern regarding balancing "the needs of
the Railroad against the responsibilities of our assemblies to have
planning" in today's environment and in the future.
Co-Chair Wilken referenced a suggestion of the Fairbanks North Star
Borough Mayor, Jim Whitaker, in his letter [copy on file] to Co-
Chair Wilken, dated May 3, 2004 in which he proposed language that
would read as follows.
(c) By January 10 if each year, the corporation shall provide
notice to municipalities of any new land use proposed for that
year by the corporation within municipal boundaries. The
corporation shall provide amended notice if a proposed land
use is changed or an additional land use is proposed during
the course of the year. Except in the event of an emergency,
an affected municipality shall have at least 30 days after its
receipt of the notice to provide advisory comment to the
corporation. In the event of an emergency, the corporation
will provide notice to an affected municipality promptly after
the event.
Co-Chair Wilken opined that the suggestion that a community task
force be involved in the process might indicate that more time
should be required to address this situation. He noted that other
communities such as the Matanuska-Susitna Borough have also voiced
concern regarding Section 1. Therefore, he reiterated that in order
to provide communities and the railroad proper consideration in
this matter, Section 1 should be addressed separately the following
Legislative session.
Co-Chair Green suggested that the incorporation of precedent-
setting litigation rulings that could not be reversed and the
establishment of a more rigorous permitting process might assist
this matter. She asked whether there is any "logical distinction"
between Railroad operations and its real estate holding as she
opined that the real estate holding usage, rather than railroad
operation projects, are the underlying issue.
Mr. Gamble responded that determining the boundary lines in regards
to these two issues "is a real interesting question," as he
continued that since the recent Court ruling, the Railroad has
noticed that the vast majority of the issues pertain to land use.
He stated that the determination regarding separation between land
use and operations could be very controversial and subjective. This
he continued is exampled by the controversy surrounding the
Anchorage Ship Creek railroad land wherein the Municipality of
Anchorage's planning and zoning commission requirements specify
that a certain type of landscaping scheme, including the planting
of trees, must be in place. In this regard, he explained that were
trees planted per commission's instructions, they would negatively
impact the operational ability of the crew manning the line's
observation tower. Furthermore, he shared that when the Railroad
requested a waiver regarding this issue, the municipality denied
one. He stated that were every project required to address things
of this nature, it would be very time consuming. He concluded that
this situation signifies the intent of the original exemption.
Senator Therriault pointed out that this example applies to the
development of a piece of Railroad land that would be used for
operational purposes.
Senator Therriault pointed out that language in Section 1, lines 11
and 12 specifies that any Railroad land leased to another entity
would not be provided the Railroad exemption and would be subject
to local planning and zoning requirements. He noted that leasing of
Railroad land is a revenue generating mechanism.
Mr. Gamble clarified that land leased in this fashion today, is not
subject to the Railroad exemption.
Senator Therriault stated that the aforementioned amendment
suggested by the Mayor of Fairbanks is acceptable to the Railroad,
even thought the Mayor's letter states that the Railroad disagrees
with it.
Mr. Gamble voiced that the Railroad's comments in this regard were
taken out on context.
Co-Chair Wilken stated that this would be clarified.
Senator Olson asked the number of Railroad projects that would be
negatively impacted were Section 1 removed from the bill.
Mr. Gamble responded that a borough-by-borough analysis would be
required to answer that question; however, he noted that there are
approximately 113 projects under consideration. He stated that this
information would be forthcoming.
Co-Chair Wilken stated that the struggle with Section 1 is
acerbated by the upcoming Legislative Session adjournment date,
which, he declared, does not provide significant time to properly
address the issue. He noted that the Mat-Su and Kenai Boroughs have
evening meetings planned to discuss this issue, and that their
feedback would be helpful. He suggested that a committee substitute
be developed that might eliminate Section 1 from consideration at
this time.
Senator Dyson encouraged the Committee to consider a committee
substitute that would, rather than omitting Section 1, limit it to
specific "high priority" projects.
Co-Chair Wilken stated that the intent would be to protect the
Railroad until due consideration could be provided. He opined that
perhaps a termination date or other measure would be appropriate at
this time.
Senator Therriault stated that the adoption of Mayor Whitakers'
language suggestion or a termination date in this legislation might
increase the Committee's "comfort level" without hindering the
Railroad's ability to operate. This action, he continued would also
provide time to develop alternate language that could be considered
during the next Legislation Session.
Co-Chair Wilken ordered the bill HELD in Committee in order to
develop a committee substitute that could serve as "a bridge during
this press of time." He reiterated his concern about the long-term
affects of any action taken because the language "is very
explicit." He noted that the Railroad's position as stated in Mayor
Whitaker's would be further clarified.
SENATE RESOLUTION NO. 3
Relating to commemoration of Senator Frank R. Ferguson and
other distinguished Senators.
This was the second hearing for this resolution in the Senate
Finance Committee.
Co-Chair Wilken asked the Resolution's sponsor to address Committee
concerns regarding the proposed location of the plaque and the
nomination process through which names could be added in the
future.
Senator Olson, the Resolution's sponsor, noted that this Resolution
would honor Senators by having their name included on a
commemorative plaque that would be placed in the Capitol. He stated
that the plaque would be an alternative to naming rooms and
buildings after legislators due to the fact that there are a finite
number of such places available. He provided an example of the
plaque [copy on file].
Co-Chair Wilken reminded the Committee that Amendment #2, which was
previously adopted, would omit the words "wall outside the Senate
Finance Committee Room" and insert the words "place inside the
Capitol Building" after the word "prominent" on page two, line 24
of the Resolution.
Amendment #3: This amendment inserts the words "resolution of"
following "by" on page two, line 25. Therefore, with the inclusion
of Amendment #2, this language would read as follows.
BE IT RESOLVED by the Alaska State Senate that a commemorative
panel be established at a prominent place inside the Capitol
Building for the listing of Senators who are specially
recognized by resolution of the Alaska State Senate for the
value of their contributions to he Alaska State Legislature
and the people of Alaska; and be it
Co-Chair Wilken moved to adopt Amendment #3.
Co-Chair Green objected for explanation.
Co-Chair Wilken explained that this language would allow the bill
to be considered a "simple resolution" under Legislative Rule 49,
which allows a resolution to be approved by either the House of
Representatives or the Senate without requiring concurrence from
the other body.
Senator Olson voiced support for the Amendment.
Co-Chair Green removed her objection.
There being no further objection, Amendment #3 was ADOPTED.
Amendment #4: This amendment inserts the word "posthumously" into
the bill on page three, line 25, following the word "recognized".
Senator Olson moved to adopt Amendment #4.
There being no objection, Amendment #4 was ADOPTED.
Senator Olson moved to report the Resolution, as amended, from
Committee with individual recommendations and accompanying fiscal
notes.
There being no objection, CS SR 3 (FIN) was REPORTED from Committee
with zero fiscal note #1 from the Legislative Council, Legislative
Affairs Agency, dated March 8, 2004.
CS FOR SENATE BILL NO. 224(STA)
"An Act relating to a minor operating a vehicle after
consuming alcohol, to a minor refusing to submit to chemical
tests, and to driving during the 24 hours after being cited
for one of those offenses; and providing for an effective
date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken noted that the Senate State Affairs (STA) committee
substitute, Version 23-LS1037\B, would stiffen the penalties and
fines for minors, those under the age of 21, who drive while having
a blood alcohol content (BAC) of .02 or higher. He stated that ten
fiscal notes accompany the bill.
RICHARD SCHMITZ, Staff to Senator John Cowdery, the bill's sponsor,
commented that this legislation was developed to address situations
in which minors consume alcohol and drive. Continuing, he stated
that minors who consume alcohol and drive with a BAC of .02 percent
or higher would be charged with an infraction whereas individuals,
age 21 and older who drive with a BAC of .08 percent or higher,
would be charged with Driving While Intoxicated (DWI), a
misdemeanor. He stated that under this bill, minors would also
receive mandatory community service time and increased fines at
three separate levels dependent on whether the offense is repeated.
He stated that this legislation would acknowledge federal law that
does not allow minors to be incarcerated for "a status offense"
which is an offense that, dependent on your age, would be legal or
illegal. DWI, he stated is a "status offense" in that it is illegal
for a 20-year old to consume alcohol, but is legal once that person
turns 21 years of age.
Co-Chair Wilken asked whether the Sponsor Statement is applicable
to Version "B."
Mr. Schmitz responded that the Sponsor Statement is not current as
it refers to the proposed penalty as being a Class B Misdemeanor
rather than an infraction as specified in the Version "B" committee
substitute.
Co-Chair Wilken asked that an updated Sponsor Statement be
provided.
CINDY CASHEN, Executive Director, Mothers Against Drunk Driving
(MADD), Juneau Chapter, spoke on behalf of Juneau and four other
State MADD chapters. She noted that, in this situation and contrary
to MADD's traditional position of supporting Misdemeanor penalties
for DUIs, MADD supports the proposed infraction penalty because of
the community work service and fine structure that accompanies the
bill. She noted that a result of law enforcement efforts to
apprehend more people who drive while intoxicated, there has been
an increase in the number of arrests of minors operating vehicles
after consuming (MOVAC). Court monitoring conducted by MADD, she
noted, has observed that this increase in DUI cases has created a
bottleneck in the Court System, which has "unfortunately" resulted
in numerous MOVAC arrests being delayed, pled down, or dismissed,
and the process, she attested, has become considered "a joke" by
teenagers and has not served as an incentive to stop drinking and
driving. She stressed that the sooner the Court processes MOVACs,
the better, as the youth, at that time, "are more contrite and
aware of they did screw up, and that they need to figure out what
they need to do in the future."
Ms. Cashen stated that by "substantially" increasing the fine and
requiring community work service, this bill would be effective. She
noted that community work service has seldom been required in the
past; however, she opined that it would make a difference and that
this legislation would move the MOVACs through the system faster.
Senator Bunde asked whether the increased fine levels would
generate sufficient revenue to warrant the increased expenses
reflected in the Public Defenders Agency fiscal note.
Ms. Cashen responded that youth currently have a right to a Public
Defender; therefore, she declared that MADD does not believe that
this bill would incur additional expense to the Agency as "nothing
is going to change."
Co-Chair Wilken asked the Agency to expound on the need to increase
Public Defender Agency staff by one.
BARBARA BRINK, Director, Public Defender Agency, Department of
Administration, testified via teleconference from an offnet site
and commented that the Agency's fiscal note was calculated based on
Division of Motor Vehicles' projections of minor drivers who are
"processed for administrative driver license revocations who are
not currently charged with operating a motor vehicle after
consuming." "Respectfully disagreeing" with the sponsor and MADD,
she stressed that this is a criminal offense and that classifying
it as an infraction rather than a misdemeanor would not negate the
need for a jury council or legal counsel. Continuing, she stressed
that additional staff would be required as an increase in cases
involving juveniles charged with these offenses would result. She
also noted that District Court judges rather than magistrates would
be required to hear these cases, and she stressed that it is
difficult to predict how many cases would be processed.
Ms. Brink agreed that the increased penalties would assist in
decreasing the number of minors who choose to drink and drive. She
clarified for the Committee that any minor with a BAC of .08
percent or higher would be charged with Driving Under the
Influence. She reminded the Committee that the Agency experienced a
tremendous caseload increase when the penalties for Minor Consuming
(MC) were increased several years ago. She stated that, while this
bill would be effective, "Justice comes at a price."
Ms. Cashen reiterated that rather than increasing the number of
youth processed for MOVAC, this legislation would move those
charged through the system quicker, and as a result, would make the
process "easier."
Co-Chair Wilken thanked MADD for the efforts it exerts regarding
drunk driving issues.
AT EASE 10:39 AM / 10:40 AM
DON SMITH, Administrator, Alaska Highway Safety Office, spoke in
support of the bill.
Co-Chair Green moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objection, CS SB 224(STA) was REPORTED from
Committee with zero fiscal note #5, dated April 27, 2004 from the
Department of Public Safety; indeterminate fiscal note #6, dated
April 28, 2004 from the Alaska Court System; zero fiscal note #7,
dated April 28, 2004 from the Department of Health and Social
Services; zero fiscal note #8, stated April 29, 2004 from the
Division of Motor Vehicles, Department of Administration;
indeterminate fiscal note #9, dated April 29, 2004 from the Office
of Public Advocacy, Department of Administration; and $134,700
fiscal note #10, dated April 28, 2004 from the Public Defender
Agency, Department of Administration.
SENATE CS FOR CS FOR HOUSE BILL NO. 93(TRA)
"An Act relating to boating safety, registration, and
numbering; extending the sunset date of changes in ch. 28, SLA
2000; and providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken noted that the Senate Transportation Committee
committee substitute, Version 23-LS0230\U, and its accompanying
fiscal notes would serve to extend the termination date of the
Alaska Boating Safety Act from 2005 to 2010 and would remove the
registration requirement for non-motorized vessels.
LINDA SYLVESTER, Staff to Representative Bruce Weyhrauch, the
bill's sponsor, stated that this legislation would extend the
termination date of the boating registration program that was
implemented in the year 2000. She noted that a termination date was
attached to the original legislation due to concern as to whether
or not the federal funds the program attracted "might be
continuous." She informed that Committee that there is no
indication that these federal funds, which are drawn from the
Wallace Wallop-Breaux Trust Fund, would terminate.
Ms. Sylvester informed the Committee that the original version of
this bill eliminated the termination date section; however, a
termination date was included in the committee substitute adopted
by the Senate Transportation Committee (TRA). Continuing, she noted
that after discussions in regarding the statewide controversy about
requiring non-motorized boats to register, the Senate TRA decided
to exempt all non-powered boats from the requirement.
SFC 04 # 106, Side A 10:43 AM
Ms. Sylvester noted that the TRA version of the bill is in
compliance with federal law, which requires motorized vessels to be
registered, and she spoke of the sponsor's desire that the program
continue.
Co-Chair Wilken noted that a representative of the Department of
Health and Social Services is present to answer questions pertinent
to that Department. He voiced the understanding that the Department
supports the bill.
Senator Dyson shared that he is a member of the Boating Safety
Council. He voiced appreciation for the registration exemption for
non-powered vessels as specified in Section 2, subsection (i)(4) on
page two, line 12 that reads as follows.
(4) a boat that is not equipped with mechanical propulsion [,
THAT IS EXCLUSIVELY PADDLED, POLED, ROWED, OR POWERED BY WIND,
AND THAT IS
(a) UNDER 10 FEET IN LENGTH; OR
(b) OPERATED IN THIS STATE FOR A PERIOD NOT EXCEEDING 30 DAYS
IN A CALENDAR YEAR BY A PERSON WHO HAS NOT ESTABLISHED
RESIDENCY AS DESCRIBED UNDER AS 01.10.055];
New Text Underlined [DELETED TEXT BRACKETED]
Senator Dyson suggested that the word "mechanical" be replaced with
the word "powered" as he is concerned the term mechanical could be
confusing as such things as mechanically powered peddle-boats might
be viewed as requiring registration.
SUE HARGIS, Boating Safety Specialist, United States Coast Guard
(USCG), responded that peddle-boats are not recognized as
mechanically propelled by the federal government. Therefore, she
stated that this should not be a concern because the USCG conducts
the training of the State Troopers who would be involved in
enforcing the law.
Senator Dyson acknowledged.
Senator Dyson regarded the language in Section 2, subsection (i)(6)
on page two, line 22 to be redundant in that its specific reference
to "umiaqs," is unnecessary as he viewed those vessels to exempted
by the language in Section 2, subsection (i)(4).
(6) a handmade non-motorized umiaq with a walrus or sealskin
covering.
Ms. Sylvester concurred. Continuing, she noted that the TRA
committee adopted an amendment sponsored by Senator Olson that
incorporated the umiaq reference into the bill, and she noted that
this is the first time in Alaska record that umiaqs, which could be
powered by motors, are referenced in legislation.
Senator Dyson understood; however, asked why such things as kayaks
were not also included.
Ms. Sylvester agreed that it is redundant. In order to address the
reason for the inclusion of umiags, she informed the Committee that
according to USCG regulations, all undocumented vessels equipped
with propulsion machinery must be registered in the State of
principal use. This, she stressed, is the intent of this program.
Senator Dyson announced that his vessels would become compliant
were this bill adopted.
JACK CADIGAN, Captain, United States Coast Guard Retired, and
Representative, United States Coast Guard Auxiliary, stated that he
was available for questions.
Ms. Hargis, on behalf of the USCG, thanked the State for
implementing the Boating Safety Program in 2000. She noted that
Alaska was the last of the fifty states to implement such a program
and as a result, benefited from other states' experiences and has
become one of the leaders in such things as educational programs.
She affirmed that the termination date, which would be extended by
this bill, was originally included to address the continuous
funding concern.
Ms. Hargis noted that while the USCG is typically involved in
boating safety issues when there is the need for a Search and
Rescue operation, this legislation allows the USCG to be involved
at the educational level and in that regard, could assist in saving
lives that otherwise might be lost.
Senator Olson suggested that the words "internal combustion engine"
as opposed to the "less vague mechanical propulsion" term be
utilized, were clarification on this issue desired.
Ms. Hargis clarified that the term "mechanical propulsion" would
serve to include electric engines.
Senator Dyson expounded that "all definitions are problematic" as
exampled by the fact that steam engines are external combustion
engines.
Senator Olson asked the consequence of not adopting this
legislation.
Ms. Sylvester responded that the program would terminate; and as a
result Alaska would loose federal funding that is utilized to
support educational programs. She noted that were the State to
desire to continue any of these programs, general fund support
would be required to replace those funds. In addition, she noted,
that the boat registration process and the revenue generated from
those registrations would revert back to the federal government.
Ms. Hargis noted that while the registration component would
continue as a federal program, the benefits to the State would
dissipate.
Co-Chair Wilken disclosed his involvement in an organization that,
as a result of the programs supported by the Boating Safety
Program, provides life jackets to youth in the Fairbanks area.
Co-Chair Wilken ordered the bill HELD in Committee.
[NOTE: This bill was readdressed after the Recess.]
RECESS TO THE CALL OF THE CHAIR 10:53 AM / 2:50 PM
SENATE CS FOR CS FOR HOUSE BILL NO. 93(TRA)
"An Act relating to boating safety, registration, and
numbering; extending the sunset date of changes in ch. 28, SLA
2000; and providing for an effective date."
[NOTE: This bill was heard earlier in the meeting, just prior to
the 10:53 AM RECESS.]
JENNIFER YUHAS, Executive Director, Alaska Outdoor Council (AOC),
testified via teleconference from an offnet site and, while voicing
"general support" for the TRA committee substitute, urged the
Committee to revoke the non-mechanically propelled vessel exemption
afforded in the Version "U" committee substitute in Sec. 2,
subsection (i)(4) on page two, lines 12 -15. She declared that
allowing this exemption would, in effect, place the burden of
funding the program on the shoulders of motorized vessel owners,
when in fact, all users benefit from it.
Co-Chair Green asked for confirmation that AOC is concerned
specifically about language on lines 12-15 of Section 2, subsection
(i)(4) rather than the entirety of the exemption language as
identified on lines 12 through 19 of that section in the TRA
committee substitute.
Ms. Yuhas clarified that AOC is most concerned about the language
on lines 12 through 15 of that section. The language in question
reads as follows.
(4) a boat that is not equipped with mechanical propulsion [,
THAT IS EXCLUSIVELY PADDLED, POLED, ROWED, OR POWERED BY WIND,
AND THAT IS
(A) UNDER 10 FEET IN LENGTH; OR
New Text Underlined [DELETED TEXT BRACKETED]
Senator Bunde questioned the consequences that would occur were the
entirety of Section 2, subsection (i)(4)(B) revised, as it would
appear that it would allow a person who might, for example, not
operate a motorized speed boat for more than 30 days a year, to be
exempt from registering.
(B) OPERATED IN THIS STATE FOR A PERIOD NOT EXCEEDING 30
DAYS IN A CALENDAR YEAR BY A PERSON WHO HAS NOT ESTABLISHED
RSIDENCY AS DESCRIBED UNDER AS 01.10.055];
REPRESENTATIVE BRUCE WEYHRAUCH, the bill's sponsor, affirmed that
would be the affect.
Senator Bunde surmised therefore that the entirety of Sec. 2,
subsection (i)(4) should be eliminated.
Co-Chair Green clarified that AOC's position is that the language
in Section 2, subsections (i)(4) and (4)(A) that were deleted in
the TRA committee substitute be re-inserted.
Senator Bunde understood AOC's concern to be that mechanized
vessels would be subsidizing the program. Therefore to address that
concern, he suggested that the entirety of Section 2, subsection
(i),subsection (4), lines 12 through 19, be eliminated.
Ms. Yuhas clarified that AOC desires to have the language on page
two, lines 12 through 15, reinstated into bill.
Co-Chair Wilken clarified that AOC is concerned about the language
that reads as follows.
(4) a boat that is not equipped with mechanical propulsion [,
THAT IS EXCLUSIVELY PADDLED, POLED, ROWED, OR POWERED BY WIND,
AND THAT IS
(A) UNDER 10 FEET IN LENGTH; OR
New Text Underlined [DELETED TEXT BRACKETED]
Co-Chair Green recalled that in order to pass the original bill
through the Legislative process, the language in question was added
as a compromise measure because, she noted that, at the time,
people who owned such things as canoes and kayaks under ten feet in
length did not wish to support the program. The supporters of the
original bill, she noted, assumed that everyone, regardless of
whether their vessel was motorized or not, participated in
recreation and would require assistance in times of need or would
benefit from one of the educational programs. Therefore, she urged
that this language be reinserted.
Amendment #1: This language would reinstate the following language
into Sec. 2, subsection (i)(4) on page two, beginning on page 12 as
follows.
(4) a boat that is not equipped with mechanical propulsion,
that is exclusively paddled, poled, rowed, or powered by wind,
and that is
(A) under 10 feet in length
Co-Chair Green moved to adopt Amendment #1.
Co-Chair Wilken objected for discussion.
Senator Dyson asked the affect of this amendment.
Co-Chair Green stated that were this language reinstated, all boats
exceeding ten feet in length would require registration.
Representative Bruce Weyhrauch explained that the bill, after
progressing through four different committee hearings, "is a
compromised package." He noted that during the bill's progression
through committees, AOC had spoken in support of establishing the
2010 termination date in order to more adequately assess the
language being discussed in Amendment #1. He informed the Committee
that were the language in Amendment #1 reinstated, then language in
Section 1, subsection (2) on page one, beginning on line 11, must
additionally be discussed as it addresses the same issue.
Senator Bunde understood that adoption of the amendment would
specify that non-powered boats under ten feet would be exempt, and
that longer boats such as canoes, kayaks and other similar boats
would be required to register.
Ms. Hargis affirmed that Senator Bunde is correct in that were
Amendment #1 adopted, non-motorized small boats such as paddleboats
would require registration. She stressed that adoption of the
amendment would not jeopardize compliance with federal
requirements. She clarified that "the occasional users" of such
things as kayaks and canoes, rather than avid boaters, requested
the exemption implemented in the TRA committee substitute.
Co-Chair Wilken understood therefore that were the Committee to
adopt the TRA committee substitute as is, his 18-foot canoe would
not require numbering and registration; however, he continued, were
Amendment #1 adopted, that 18-foot boat would require numbering and
registration as it exceeds ten feet in length.
Senator Dyson recalled that during previous committees'
discussions, small boat owners objected to registering them because
they argued that many small boats are seldom utilized and therefore
would not require the same measure of USCG assistance that larger,
more frequently used power boats would. He voiced opposition to the
amendment.
Ms. Sylvester stated that the original purpose of the bill was to
either repeal or extend the termination date of the Safe Boating
Program. However, she pointed out that during the committee
processes, the issue of whether or not to license non-motorized
vessels such as rafts, rowboats, and kayaks, particularly in
Interior Alaska, which were used on an infrequent basis, surfaced
and became a pivotal point of discussion. She disclosed that "the
bottom line" regarding this bill is the fact that the money that
funds this program is derived from the federal motor fuel tax
rather than from such things as registration fees. Thus, she
concluded, "the logical link" in this legislation is the fact that
federal regulations specifically require boats propelled by
motorized mechanisms to be registered. While voicing appreciation
for AOC's position, she observed that there are impassioned
positions on both sides of the argument. To put the cost of
registering "in perspective," she pointed out that the cost of
registering a vessel is $3.33 per year. In summary, she stated that
removing the language in question was a policy call on the part of
the TRA committee, and she stressed that, "for the price," the
Boating Safety Program "is a great program."
Co-Chair Wilken reviewed the amendment and concluded that a vote
for the amendment would reinstate language on page two, lines 12
through 15 that was omitted by the TRA committee. Thus, he stated,
adoption of the amendment would serve to continue the original
bill's language in that any non-motorized boat, ten feet in length
or longer, would be required to register.
Senator Dyson asked how many non-mechanized vessels have been
registered since this program's implementation.
Ms. Hargus stated that, "there has been compliance" with the
program and that approximately 25,000 vessels have registered. She
noted that prior to the program's transferal from federal control
to the State, approximately 33,000 boats were registered and that
after the transfer, the numbers increased to approximately 85,000
overall. She disclosed that upon a USCG review of Search and Rescue
(S&R) responses that were conducted, it was determined that
approximately ten percent of the total S&R responses involved non-
motorized boats.
Senator Dyson calculated that approximately 25-percent of the
entire number of non-motorized vessels in the State that should be
registered, are. Continuing, he stated that adoption of this
amendment would make the owners of the remaining 75-percent non-
compliant, and therefore subject to sanction. Therefore, he asked
the penalty for non-compliance.
Representative Weyhrauch stated that, the previous year, he had
been cited for non-registration of a 16-foot Boston Whaler skiff.
He disclosed that he had received a citation and was required to
comply with USCG licensing regulations.
Senator Dyson asked whether his picture was published in the paper.
Representative Weyhrauch responded in the negative, and stated that
once he had complied with the requirements, the case was dismissed.
Senator Dyson understood therefore that no fine was levied.
Representative Weyhrauch stated that he was required to comply with
the requirements and did not have to pay a fine.
Senator Olson spoke against the amendment.
Ms. Hargus stated that were the State, rather than the USCG, to
have cited Representative Weyhrauch, a $50 fine would have been
levied for the offense.
Co-Chair Wilken, noting that the end of this Legislative Session is
nearing, asked how the adoption of this amendment would affect
further action on this bill.
Representative Weyhrauch opined that this action would negatively
affect the bill's passage.
Senator B. Stevens understood that the amendment would reinstate
the registration for non-motorized vessels that are ten feet in
length or longer and would not require registration for non-
motorized vessels less than ten feet. He declared a conflict, as he
owned boats in each category.
Senator B. Stevens asked the reason that the adoption of the
amendment "would dislodge the bill from concurrence."
Representative Weyhrauch responded that getting agreement, in light
of the controversy regarding the termination date and the non-
motorized vessel registration issues, might be difficult.
In response to a question from Senator B. Stevens, Ms. Hargus
clarified that the registration issue pertains to non-motorized
boats, as all motorized vessels would continue to be required to
register.
Representative Weyhrauch reiterated that the motorized boat
registration requirement is because of the federal motor fuel tax.
Ms. Sylvester pointed out that the bill would not have reported
from the TRA committee were the exemption for non-motorized vessels
not incorporated. She stated that the individuals who opposed the
requirement that non-powered vessels be registered would again
voice their objection to the bill were this language reinstated.
Co-Chair Wilken voiced that delaying the bill would be problematic.
Senator B. Stevens asked regarding the registration fee.
Representative Weyhrauch responded that the three-year registration
fee is ten-dollars.
Ms. Sylvester stated therefore, that the cost is $3.33 a year.
Senator Olson spoke against the amendment due to its negative
affect on the use of small non-motorized boats in Rural Alaska. He
stated that this is another example of an un-necessary layer of
government.
Senator Bunde stated that "for the greater good," he would oppose
the amendment. However, he suggested that those who disagree with
paying $3.33 a year should not receive S&R support.
Co-Chair Green reminded the Committee that the original Boating
Safety Program legislation would not have been enacted were the
exemption awarded to non-motorized vessels under ten-feet not
incorporated. She opined that all boaters should support the
program as all benefit from it.
Representative Weyhrauch acknowledged Co-Chair Green' comment.
A roll call was taken on the motion.
IN FAVOR: Co-Chair Green
OPPOSED: Senator Hoffman, Senator Olson, Senator B. Stevens,
Senator Dyson, Senator Bunde, and Co-Chair Wilken
The motion FAILED (1-6)
The motion to adopt Amendment #1 FAILED.
CLIFF JUDKINS, Chair, Alaska Boating Association, testified via
teleconference from Mat-Su, to share that the Association's 1,200
membership consists of both power and non-power boaters. He noted
that his testimony is "moot" as it pertained to Amendment #1 that
the Committee failed to adopt.
Senator Bunde moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objections, SCS CS HB 93(TRA) was REPORTED from
Committee with zero fiscal note #3, dated January 13, 2004 from the
Department of Natural Resources and negative $24,800 fiscal note
#4, dated January 16, 2004 from the Department of Administration.
CS FOR HOUSE BILL NO. 227(JUD)
"An Act increasing the jurisdictional limit for small claims
and for magistrates from $7,500 to $10,000; increasing the
jurisdictional limit of district courts in certain civil cases
from $50,000 to $100,000; expanding the jurisdiction of
district courts; limiting magistrates from hearing certain
small claims cases; and amending Rule 11(a)(4), Alaska
District Court Rules of Civil Procedure, relating to service
of process for small claims."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that this legislation would increase the
jurisdictional limit of District Courts from $50,000 to $100,000.
He noted that the Senate Judiciary Committee committee substitute,
Version 23-LS0896\U, and an accompanying indeterminate fiscal note
is before the Committee.
VANESSA TONDINI, Staff to Representative Lesil McGuire, the Chair
of the Senate Judiciary Committee, read the sponsor statement into
the record as follows.
The jurisdictional limit for district courts was last raised
in 1990 when the legislature raised the limit from $35,000 to
$50,000. By raising the jurisdictional limit from $50,000 to
$100,000, this bill will allow for increases inflation and
provide increased flexibility for litigants regarding whether
to file in district court or superior court.
The jurisdictional limit on small claims court and magistrate
court was last raised in 1997 when the legislature raised the
limit from $5000 to $7500. Small claims court offers many
advantages over district court to private litigants, including
less formal discovery requirements, reduced filing fees, and
relaxed evidentiary rules. This bill will increase the limit
to $10,000.
The bill also removes prohibitions against the district court
hearing claims for false imprisonment, libel, slander, and
malicious prosecution. These restrictions were adopted shortly
after statehood. District court judges are well qualified and
there is no reason to prohibit them from hearing these types
of cases.
Finally, the bill will expand small claims jurisdiction over
out-of-state defendants. Under current law, small claims
actions against out-of-state defendants may only be brought
under the landlord-tenant act or under AS 09.05.020, which
authorizes services of process against owners or operators of
motor vehicles involved in an accident in the State. The bill
would authorize small claims jurisdiction over out-of-state
defendants under traditional long-arm principles. This
expanded long-arm jurisdiction is limited to district court
judges. Magistrates will continue to limited by the standards
set forth in current law.
Ms. Tondini summarized that the bill would implement several
"upgrades" to jurisdictions" of the Court system and would be
consistent with the Court's "general philosophy" regarding
encouraging citizen to "access lower courts in a friendly manner."
She noted that the business community supports this bill.
DOUG WOOLIVER, Administrative Attorney, Office of the
Administrative Director, Alaska Court System, noted that while the
Court System did not initiate this legislation, several changes
incorporated into this bill are consistent with the Court's general
philosophy regarding making the Courts more accessible to
litigants. However, he noted that the downside to increasing the
small claims jurisdictional limit and making the process easier,
cheaper, and more relaxed for litigants to sue people, is the
concern that judges might hear a large case that might not "have
been adequately argued," has had no briefing, and would simply
involve two people appearing before a judge. He noted that while
judges are comfortable with this process when small dollar amounts
are involved, the higher the limit is would increase the likelihood
that the resulting ruling might not be "particularly well thought
out."
Mr. Wooliver stated that the Court System's indeterminate fiscal
note takes into consideration that more out-of-state court cases
are likely and that, due to the higher limit allowed, some non-
economical cases might be heard in a small claims court. He noted
however, that when the jurisdictional level was last raised, no
significant court expense resulted.
Senator Olson asked whether, in addition to the District Court,
this legislation might affect other segments of the Court System
that operate under "the rules of civil procedure."
Mr. Wooliver responded "not directly, no." He continued that
currently, cases involving claims in excess of $50,000 must be
heard by the Superior Court, and were this bill adopted, claims up
to $100,000 could now be heard by the District Court. He clarified
that no jurisdictional issues involving the Superior Court would be
affected.
Co-Chair Green moved to report the bill from Committee with
individual recommendations and accompanying fiscal note.
There being no objection, CS HB 227 (JUD) was REPORTED from
Committee with indeterminate fiscal note #2, dated April 7, 2004
from the Alaska Court System.
SENATE CS FOR CS FOR HOUSE BILL NO. 336(JUD)
"An Act relating to motor vehicle insurance; limiting recovery
of civil damages by an uninsured driver; and providing for an
effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken commented that this legislation would prohibit a
person operating an uninsured motor vehicle from recovering non-
economic losses in situations in which injury or death might occur.
He noted that SCS CS HB 336(JUD), Version 23-LS1254\I, and two
accompanying fiscal notes are before the Committee.
REPRESENTATIVE KEVIN MEYER, the bill's sponsor, pointed out that
the two accompanying fiscal notes indicate that no expenses would
be incurred were this bill implemented. He explained that this bill
would decree that, "if you are knowingly going to operate a car
without State required car insurance, then you simply cannot sue
for non-economic damages such as pain and suffering;" however, he
clarified that a person could sue for punitive and economic damages
such as wages, medical expenses, and car repair expenses. He noted
that the word "knowingly" was incorporated into the bill by the
Senate Judiciary (JUD) Committee. Other language added by the JUD
Committee he explained, stated that a person who knowingly drove
without the required vehicle insurance could sue for non-economic
damages in situations in which the other driver: was driving while
intoxicated or was on drugs; intentionally caused the accident; was
fleeing from the scene of the crime; or was at the time of the
accident committing "a felony, or was driving recklessly or with
gross negligence." He voiced his support for the amendments
incorporated into the JUD committee substitute.
SFC 04 # 106, Side B 4:11 PM
Representative Meyer stated that this legislation was developed as
a result of a constituent who is a single woman with "a low-paying
job" and who struggled to pay $1,500 a year for her car insurance,
contacted him after discovering that her neighbor, admittingly, did
not have vehicle insurance. This woman, he shared, thinking this
was unfair, began to research the situation, and found that
numerous states, such as California, have adopted legislation
prohibiting uninsured motorist from collecting non-economic awards,
and that other states also prohibit the furthering of economic
awards. He shared that the JUD committee substitute before the
Committee resembles law currently in effect in Louisiana. In
addition, he disclosed that insurance agencies pass non-economic
lawsuits award expenses on to the 82-percent of vehicle owners who
pay insurance premiums. Therefore, he stressed that those who do
pay are essentially subsidizing the costs incurred by the 18-
percent that do not.
Representative Meyers disclosed that a member of his family, while
driving, has experienced two instances in which she was hit by an
uninsured motorist, and at the time, he thought, "no problem, this
is why I have insurance coverage." However, he has since realized
that as a result of these types of accidents, his insurance rates
rise. Therefore, he stated that as a matter of fairness, "a person
who is not paying into the system should not be able to collect as
much out of the system." He also proclaimed that individuals who
comply with the law and pay liability insurance should be
classified as "victims" of an uninsured motorist. He also
acknowledged that an uninsured person might be unable to acquire
insurance due to having had multiple accidents or speeding tickets.
He stressed that these people should not be on the road. He stated
that the goal of this legislation would be to encourage everyone to
comply with the law as greater protection and fairness for everyone
would result. He reminded that driving is a privilege and not a
right.
Representative Meyers noted that the committee substitute also
contains "minor technical changes" that pertain to insurance
statutes.
MICHAEL LESSMIER, Attorney, State Farm Insurance, informed the
Committee that State Farm has 26-percent of the State's automobile
insurance market "with approximately 123,000 policies in force."
Continuing, he stated that every State Farm policyholder would
"positively benefit" were this legislation adopted.
Mr. Lessmier addressed the two technical changes incorporated into
the JUD committee substitute in Sections 2 through 5: one being the
"mirror rule" which resulted from a federal Supreme Court decision
that mandated the each "uninsured/underinsured motorists coverage
must mirror the coverage in your liability policy." This, he
explained, means that were one's liability policy to provide for
punitive damages, one's "uninsured/underinsured motorists policy
must also provide for punitive damages. He stated that, "there is
no good reason to require a victim of an uninsured motorist to pay
for that kind of coverage" in that, he expressed, "punitive damages
don't punish the uninsured driver at all, they just punish the
victim." Therefore, he stated that the bill addresses punitive
damage coverage by specifying that it would "not be required to be
part of the uninsured/underinsured motorist coverage."
Mr. Lessmier stated that the other technical change in the bill
addresses the system that has been established in the State through
which insurance companies provide policyholders the option to elect
one of a variety of monetary levels of the mandated offers
uninsured/underinsured coverage. He noted that while a person could
decline to purchase uninsured/underinsured motorist coverage at the
onset of purchasing a new policy, insurance companies are required
to provide these options to each policyholder every six months. He
continued that, in addition, State Courts have ruled that these
coverage offers must be provided for "umbrella policies as well as
on the underlying primary policy covering the automobile."
Therefore, he stated, the multitude of different offerings on a
multitude of different policies is difficult to manage and to
understand, and furthermore, he disclosed that one major insurance
carrier in the State has halted its issuance of umbrella and access
policies as a result of this requirement. In summary, he explained
that the technical change in this regard is that the requirement
for the mandatory uninsured/underinsured offers be limited to the
primary policy covering the automobile.
Mr. Lessmier stated that neither of these technical changes are
controversial, both would be beneficial, and that both are
supported by the Division of Insurance.
Mr. Lessmier commented that the language in Section 1 would benefit
policyholders and every single person who complies with the
insurance requirements. He stated that the New Jersey Supreme Court
recently ruled that this type of law "advances a policy of cost
containment by insuring that an injured uninsured driver does not
draw from the pool of accident victim insurance funds to which he
did not contribute. The legislation thus gives the uninsured driver
a very powerful incentive to comply with the compulsory insurance
laws, obtain automobile insurance coverage or lose the right to
maintain a suit for both economic or non-economic injuries." He
noted that while this proposed law is not as strict as the New
Jersey law, it makes good sense for Alaska and is a step in the
right direction.
LINDA HALL, Director, Division of Insurance, Department of
Community and Economic Development, informed the Committee that the
Department supports the technical language changes.
Co-Chair Green announced a conflict of interest as her family is
involved in the insurance industry.
Senator Bunde moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objection SCS CS HB 336 (JUD) was REPORTED from
Committee with zero fiscal note #1, dated March 29, 2004 from the
Alaska Court System and zero fiscal note #2, dated March 30, 2004
from the Department of Law.
CS FOR HOUSE BILL NO. 419(RES)
"An Act relating to regional seafood development associations
and to regional seafood development taxes."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken commented that this bill, Version 23-LS1418\V,
would allow fishermen to form regional seafood development
associations to tax themselves and thereby provide a stable funding
source for marketing efforts.
REPRESENTATIVE DAN OGG, the bill's sponsor, stated he is sponsoring
this bill by request of the Joint Legislative Salmon Industry Task
Force. He explained that by establishing 12 voluntary regional area
management associations, the salmon industry, who he noted support
this legislation, would be able to tax themselves in order to
assist in the development and marketing efforts of salmon. He noted
that the Copper River Red Salmon Association, which is one such
operating association, has been quite successful in its marketing
endeavors, and he noted that several other associations are in the
developmental stage. He shared that this legislation is spurred by
the fact that the federal and State grants that have funded these
associations would be terminating in the near future. Therefore, he
continued, the proposed legislation would provide a replacement
funding mechanism through which associations could tax its members
at rates of either point-five percent, one percent, one-point-five
percent or two-percent as determined by a vote of permit holders in
each association. He noted that once an association is formed in an
area, other groups could join it, and he clarified that non-permit
holder fisherman could be non-voting members of an association. He
also noted that provisions in the bill would allow those not
interested in joining an association to opt out of membership and
that were an association to desire to disband, it could do so.
Representative Ogg stated that rather than these associations
competing with the Alaska Seafood Marketing Institute (ASMI), the
goal would be to enhance the marketing of salmon in a collaborative
rather than adversarial manner. He urged the Committee to support
the bill.
Senator Olson asked whether there is any opposition to the proposal
as oftentimes controversy accompanies situations involving
taxation.
Representative Ogg responded that there has been no opposition to
the legislation. He recalled that some members of the troll
industry had some initial questions which were adequately responded
to, and that, in general, there has been positive response from the
industry as well as from United Fishermen of Alaska (UFA).
JERRY MCCUNE, Representative, United Fishermen of Alaska (UFA) and
Cordova Fishermen United, testified in support of the bill. He
affirmed that there is industry concern regarding how to replace
the current grant funding and that the development of area
associations would benefit the industry.
AT EASE: 4:25 PM/ 4:26 PM
Amendment #1: This amendment makes the following changes.
Following the word "fishery" in Section 3, subsection 43.76.370 (b)
on page four, line three, the words ", or is amended or
terminated," are inserted.
In addition, the amendment would insert, following the word
"section;" in Section 3, subsection (b)(1) on page four, line
seven, the language "(2) at least 30 percent of the eligible
interim-use permit and entry permit holders in the fishery cast a
ballot in the election to levy, amend, or terminate the tax;".
Other changes include the replacement of "(a) and (c)" with "(a) -
(c)" in Section 3, subsection (d) on page five, line 19; the
replacement of "(a), (c), and (d)" with "(a) -(d)" in Section 3,
subsection (h) on page six, line ten.
In addition, the phase "upon majority vote at an election held
under AS 43.76.370" is deleted and replaced with "upon majority
vote of eligible permit holders who vote in an election held under
AS 43.76.370 in which at least 30 percent of the eligible permit
holders cast a ballot." in Section 3, Section 43.76.375 of Section
3, subsection (a) on page six, lines 21 and 22.
And finally, following the word "tax;" in Section 3, subsection
(b)(3) on page seven, line eight, the language "(4) at least 30
percent of the permit holders who are eligible to vote in the
election cast a ballot in the election." is inserted.
The amendment also specifies that sections be renumbered
accordingly.
Co-Chair Wilken moved to adopt the amendment and objected in order
to allow the bill's sponsor to explain the amendment.
Representative Ogg voiced support for the amendment, as it would
allow a vote conducted by an association to be validated provided a
minimum 30-percent of eligible permit holders participated in the
election.
Co-Chair Wilken removed his objection.
There being no further objection, Amendment #1 was ADOPTED.
Senator Bunde moved to report the bill, as amended, from Committee
with individual recommendations and accompanying fiscal notes.
There being no objection, SCS CS HB 419(FIN) was REPORTED from
Committee with zero fiscal note #1, dated February 19, 2004 from
the Department of Community and Economic Development and
indeterminate fiscal note #2, dated February 8, 2004 from the
Department of Revenue.
CS FOR HOUSE JOINT RESOLUTION NO. 44(RES) am
Relating to research into the decline of the Southwest Alaska
population of the Northern Sea Otter in the western Gulf of
Alaska.
This was the first hearing for this bill in the Senate Finance
Committee.
REPRESENTATIVE DAN OGG, the Resolution's sponsor, explained that
this Resolution was developed in response to a recent United States
Fish and Wildlife Service proposal to list sea otters in the
Southwest region of the State as threatened under the Endangered
Species Act. He stated that this Resolution suggests, in "a
proactive fashion," that a federal research program be implemented
for five years prior to a decision being regarding the sea otter
endangerment status, as there is concern that the commercial
fisheries operating in the area might be negatively affected were
their fishery closed or curtailed were that status enacted.
AT EASE 4:31 PM / 4:31 PM
Co-Chair Green moved to report the Resolution from Committee with
individual recommendations and accompanying fiscal notes.
There being no objections, CS HJR 44(RES)am was REPORTED from
Committee with zero fiscal note #1, dated March 31, 2004 from the
House Resources Committee.
CS FOR HOUSE BILL NO. 424(JUD)
"An Act relating to review by the Legislative Affairs Agency
of certain state agency regulations proposed for adoption,
amendment, or repeal under the Administrative Procedure Act;
repealing provisions relating to annulment of regulations; and
providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that this bill, Version 23-LS0732\U, "would
establish a formal process in which a Legislative review would be
included when specified State agencies' regulations are being
developed after legislation is adopted. He noted that several
fiscal notes accompany the legislation.
BARBARA COTTING, Staff to Representative Jim Holm, the bill's
sponsor, affirmed Co-Chair Wilken's remarks. She commented that
"Legislators are often surprised" by how laws they have enacted are
enforced by regulation. She reviewed that, under current law, the
lone individual specified to review regulations is the Attorney
General. This legislation, she continued, would implement a formal
process that would require the Legislative Legal Division of the
Legislative Affairs Agency to review regulations, written by the
various agencies, in order to determine whether the regulations
comply with statutory authority and Legislative intent. She stated
that were non-compliance determined, the appropriate people would
be notified "and the Legislature can act." She stressed that this
process would have a positive impact on the State's economy because
the Legislative intent would be upheld and a more stable
environment would be created.
Senator Dyson asked whether the sponsor's handout titled "Steps in
the Regulation Adoption Process" [copy on file] outlines the
current process.
Ms. Cotting affirmed that it does.
Senator Dyson asked where, in the current process, the proposed
procedure would be implemented.
Ms. Cotting responded that the proposed Legislative Legal review
would occur between Steps Four "Department of Law opens file" and
Five "Agency publishes and distributes public notice, add't notice
information, and regulations".
Senator Dyson asked for further information regarding the process
that would be implemented were Legislative Legal to determine that
the regulations were non-compliant.
Ms. Cotting responded that, "at that point, written notice" would
be provided to the Department of Law, the agency that developed the
regulations, the Regulation Review Committee, the President of the
Senate, and the Speaker of the House.
Senator Dyson asked what action might occur upon notification;
specifically in a situation where the agency disregarded the
notice.
Ms. Cotting responded that other than notification of non-
concurrence, the State's Constitution regarding separation of
powers would not allow the process to be halted.
Senator Dyson surmised therefore, that the option in that case
would be to adopt more State statutes in order to allow more
conformity to occur.
Ms. Cotting agreed.
Senator Dyson noted that other states have allowed their
legislature to change regulation by resolution. He asked whether
this process would require a Constitutional amendment.
Ms Cotting affirmed that it would. She noted that another component
of this bill would remove that provision from State statute, as it
was declared unconstitutional.
Senator Bunde recalled that a similar proposal by the Legislature
had previously been "soundly rejected" in a statewide ballot.
DEBRA BEHR, Assistant Attorney General, Legislative & Regulations
Section, Office of the Attorney General, Department of Law,
affirmed that such language had been on a Statewide election ballot
in 1980, 1984, and 1986, and had, she continued, been defeated each
time by voters.
Senator Bunde commented that were a Legislative Legal review
process added to the current process, modifications to the process
might occur over time. He opined that were this process
implemented, the Legislature might benefit by being forewarned that
changes might be required "sooner than later." However, he
cautioned that, without additional staff, the volume of regulations
that occur on an annual basis might overwhelm Legislative Legal
personnel.
Ms. Behr stated that the Legislative Affairs Agency's initial
fiscal note, in addition to requesting an additional attorney
position, reflected funding from the Legislature. However, she
noted that that fiscal note was zeroed out by the House of
Representatives Finance Committee. She pointed out that the
Department of Law's indeterminate fiscal note #6, which accompanies
the bill, is the result of uncertainty regarding the level of
resources that might be provided by the Legislature as well as the
effect on the level of support the Department of Law would be
required to provide to the process.
Senator Bunde asked the number of regulations that would have been
reviewed the previous year, were this process in effect.
Ms. Behr responded that this legislation would establish a priority
system in that reviews could be limited to regulations resulting
from new legislation or expanded to review regulations pertaining
to regulations that the Legislature might perceive "to have major
policy implications." She reiterated that, in addition to this
unknown element, Legislative Legal workloads during the Legislative
Session would require Legislative Council prioritization.
Senator Bunde asked for further information regarding the
determinations of major policy implications by Legislative
committees.
Ms. Behr referred the Committee to the prioritization procedure
language located in Section 2, subsection (b)(1) and (2) on page
two, lines 7-13 that reads as follows.
(b) Reviews shall be conducted under (a) of this section in
the following order of priority:
(1) proposed regulations that would implement newly
enacted legislation;
(2) proposed regulations requested in writing to be
reviewed by a standing committee, the Administrative
Regulation Review Committee, or the legislative council as
implicating major policy development.
Ms. Behr stated that this language would assist in avoiding review
of every regulation which could, she exampled, range from reviewing
regulations pertaining to non-major priority things such as the
raising of fees five dollars or increasing continuing education
requirements for hairdressers. Therefore, she stated that the bill,
as written, would allow regulations to be reviewed as desired by
the Legislature.
DAVE STANCLIFF, Staff, Administrative Regulatory Review Committee,
Office of Senate President Gene Therriault, stated that this
legislation would develop a "cooperative quality review" process
that, by allowing the Legislature to be involved in the process,
would serve to encourage that regulations are "written more
carefully." He noted that were a prioritization process developed,
Legislative Legal staff would work with the Department of Law and
the various departments' regulation writers to enhance the process.
Furthermore, he continued, that were the system to work as
intended, the Legislature could increase funding if so desired.
Senator Olson asked how controversial, high visibility regulations
such as those pertinent to the Department of Fish and Game would be
addressed.
Ms. Behr stated that the Department of Fish and Game is exempt from
this review proposal as that Department has its own Board and has a
different regulation process.
Co-Chair Green moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objection, CS HB 424(JUD) was REPORTED from
Committee with zero fiscal note #4, dated March 24, 2004 from the
Department of Health and Social Services; zero fiscal note #5,
dated March 25, 2004 from the Legislature; and indeterminate fiscal
note #6, dated March 24, 2004 from the Department of Law.
CS FOR HOUSE BILL NO. 484(JUD) am
"An Act imposing a correctional facility surcharge on persons
convicted of a crime under state law and on persons whose
probation is revoked; relating to fees and expenses for
interstate transfer of probation or parole; and providing for
an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that the House Rules Committee by Request of
the Governor sponsors this bill, Version 23-GH2046\D.A. He noted
that the bill would implement correctional fees and surcharges on a
person arrested and sentenced to a term of imprisonment. He noted
that the level of the surcharge would be dictated by the
seriousness of the crime. He noted that several fiscal notes
accompany the bill.
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner,
Department of Corrections informed the Committee that this House
bill is the companion bill to a Senate Bill 336 which was
previously reported from Committee. She noted that the lone
difference in the two bills is that this bill would eliminate the
requirement that an inmate post a bond when being transferred to an
out-of-State prison facility. She noted that both the House and the
Senate raised concerns in this regard. Furthermore, she added that
language pertaining to the Interstate Compact was eliminated, as
pertinent federal rules would be changing this year.
Co-Chair Green moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objections, CS HB 484(JUD)am was REPORTED from
Committee with $46,500 fiscal note #1, dated February 3, 2004 from
the Department of Law; zero fiscal note #2, dated April 13, 2004
from the Alaska Court System; and $9,800 fiscal note #3 from the
Department of Corrections.
CS FOR HOUSE BILL NO. 533(JUD)
"An Act relating to the state's administrative procedures and
to judicial oversight of administrative matters."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that this bill, which is sponsored by the
House State Affairs Committee, would allow a person who is unable
to acquire a final administrative decision from a State agency to
request assistance from the State Superior Court. He noted that
Version 23-LS1833\I is before the Committee for consideration.
REPRESENTATIVE BRUCE WEYHRAUCH, Chair, House State Affairs
Committee which sponsors this bill, explained that the intent of
this bill is to provide a person the ability to "dynamite a case"
being reviewed by an administrative agency from that agency and
place it with the Superior Court in order to obtain "a more
expeditious decision."
Senator Olson asked how frequently these situations occur.
Representative Weyhrauch clarified that the Superior Court
jurisdictional review process is currently unavailable. He
explained that, even were this legislation adopted, the proposed
process would not be implemented without a "showing of unreasonable
delay," and, in addition, the administrative agency would be
provided an opportunity to provide a rational reason as to why a
decision had not be made. He also pointed out that in some
instances, a delay in a determination might benefit an individual
as exampled by a situation in which, during the review process, the
Department of Fish and Game might issue an interim fishing permit
to a person who might have some issues that might negatively affect
their application. On the other hand, he stated, were a
determination regarding an appeal of a person's business license
delayed, the person's livelihood could be jeopardized. This
legislation, he attested, would enable a person to request that the
agency "move quickly provide" to expedite the decision.
Co-Chair Green moved to adopt Version "I" as the working document.
There being no objection, Version "I" was adopted as the working
document.
Senator Bunde asked regarding Fiscal Note #4 from the Department of
Law.
Representative Weyhrauch responded that this fiscal note would
address attorney expenses incurred to the Department when it
represents an agency in litigation based on unreasonable agency
delay.
Senator Bunde observed that this is "when we sue ourselves again."
DAVE STANCLIFF, Staff, Administrative Regulatory Review Committee
and Staff to Senate President Gene Therriault, informed the
Committee that, since 1980, in excess of 8,500 administrative
agency determinations took longer than one year to be completed.
Continuing, he noted that "what is not reflected" in the fiscal
notes are the savings resulting from "less State time and less
State dollars" that would result were decisions made more
expediently. He stated that quicker determinations would also
positively impact the private sector.
Senator Bunde concurred. However, he noted that while this bill
would encourage more agency efficiency, that efficiency requirement
could provide the opportunity for State agencies to be sued.
DOUG WOOLIVER, Administrative Attorney, Office of the
Administrative Director, Alaska Court System, noted that, even
though many people might believe that their delay is unreasonable,
the Court System does not believe it would be "flooded" with cases
as, he opined, the possibility that a case might be moved to the
Superior Court would serve to motivate agency determinations to be
conducted within a reasonable amount of time. He noted that this
process could also be enhanced as a result of measures included in
other legislation that is being introduced. However, he stated that
were thousands of yearlong determination delays to occur, the
Department would require additional funding.
Representative Weyhrauch informed the Committee that, at one point,
language had been made entertained that would have served to
withhold payment to Superior Court justices were a ruling not
forthcoming within six months after referral. He noted that this
language, while not adopted, could also have applied to agency
hearing officers.
Co-Chair Green moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objection, SCS CS HB 533(FIN) was REPORTED from
Committee with indeterminate fiscal note #1, dated March 18, 2004
from the Alaska Court System; indeterminate fiscal note #2, dated
March 23, 2004 from the Department of Fish and Game; zero fiscal
note #3, dated March 23, 2004 from the Department of Health and
Social Services; and $84,300 fiscal note #4, dated March 26, 2004
from the Department of Law.
ADJOURNMENT
Co-Chair Gary Wilken adjourned the meeting at 04:54 PM
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