Legislature(1999 - 2000)
02/08/1999 01:35 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
February 8, 1999
1:35 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 24
"An Act relating to the adoption, amendment, repeal, legislative
review, and judicial review of regulations; and amending Rule 202,
Alaska Rules of Appellate Procedure."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 24 - See Judiciary minutes dated 1-29-99.
WITNESS REGISTER
Ms. Deborah Behr
Assistant Attorney General
Legislation and Regulations Division
Department of Law
PO Box 110300
Juneau, AK 99801-0300
POSITION STATEMENT: Commented on SB 24
ACTION NARRATIVE
TAPE 99-8, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:35 p.m. and announced the committee would consider SB 24
as the first and only order of business.
SB 24-REGULATIONS: ADOPTION & JUDICIAL REVIEW
SENATOR DAVE DONLEY, prime sponsor of SB 24, moved the committee
adopt the new work draft marked 1-LS0274\H, dated 2-8-99. Without
objection, it was so ordered.
SENATOR DONLEY explained the changes incorporated into the new
committee substitute: Section 3 states that a state agency may not
adopt regulations that are different than the legislative intent of
the statute under which they are being adopted.
Section 4 additionally exempts the Department of Natural Resources
and the Department of Corrections as well as State Boards and
Commissions from the requirements of the bill.
Section 5 requires any proposed action on regulations, including
amendments, adoption or repeal of regulations, to be posted on the
Internet.
Number 060
SENATOR DONLEY moved to amend the committee substitute to include
"Limited Entry Commission" after "Board of Fish" on page 3, line
31. SENATOR HALFORD objected, then withdrew his objection and so
without objection, the committee substitute was amended.
SENATOR DONLEY continued, explaining Section 8 exempts the
Department of Natural Resources and State Boards and Commissions
from the supplemental public notice requirements in the original
bill.
Section 12 imposes a time limit of two years on the implementation
of regulations to comply with a new statute. If no regulations are
adopted within two years, a department is required to submit a
report to the Legislature explaining why.
Section 14 sets, in most cases, a two-year time limit on
administrative adjudication.
Number 095
CHAIRMAN TAYLOR said that those people wishing to have regulations
carried out are being coerced by the department to "play games".
Two years is an exorbitant amount of time and he would like to see
a standard of 6 months, as well as "some teeth" to enforce this
provision. SENATOR DONLEY replied he is open to suggestions and
merely proposed this as a reasonable starting point.
Number 122
SENATOR TORGERSON asked why SENATOR DONLEY had proposed this idea
versus an absolute time line. SENATOR DONLEY replied this is a step
forward and "more than we have now". He would be willing to
consider changes if the committee wants to do something stronger.
However, it would be difficult to impose a penalty that prohibited
a department from creating regulations after two years, considering
they may have wanted to avoid the regulations in the first place.
CHAIRMAN TAYLOR remarked "You could end up with an Administrative
veto just by failure to do the regulations". SENATOR TORGERSON said
that was his point, and perhaps this section is too broad. SENATOR
DONLEY considered adding a requirement that the Commissioner of the
department failing to adopt the regulations sign an affidavit
stating the delay was beyond their control. SENATOR DONLEY insisted
he is serious about enforcing compliance of this section but
understands there are, on occasion, legitimate delays in the
implementation of regulations. He remarked there is currently no
deadline, and the only recourse to compel the adoption of
regulations is a lawsuit.
SENATOR TORGERSON reminded the committee they had requested from
the Department Of Law an example of a typical time line of a new
regulation. CHAIRMAN TAYLOR asked MS. DEBORAH BEHR if she had a
response. MS. BEHR replied she sent a letter to the committee dated
February 3, 1999.
MS. BEHR explained the time line of a regulation depends on the
complexity of a project; the minimum time, by statute, is sixty
days. She has put regulations in place in sixty-one days but large,
complex projects require more public comment and can take a long
time. There is a "staleness rule" within the Department of Law that
requires new public comment if a proposal is more than one year
old.
Number 207
SENATOR TORGERSON asked if MS. BEHR, taking into consideration the
Legislature's frustration with delays, could suggest an alternative
to the notice requirement of the department in Section 12.
MS. BEHR emphasized she had received this new committee substitute
only five minutes prior to speaking. She said, in her professional
opinion, Section 12 already has substantial teeth. If the
Administrative Procedures Act (APA) is not followed, a regulation
can be voided. She indicated that under this provision, anyone who
is dissatisfied with a regulation, even a regulation required by
law and consistent with Legislative intent, can sue.
Number 233
CHAIRMAN TAYLOR asked about a case in which it took years to agree
on a regulation concerning solid waste but, due to a change in the
administration, was never signed into law. CHAIRMAN TAYLOR
remarked that it seems a garbage dump should have the same
regulations under any administration. MS. BEHR said she would
research this case but did know that both the federal government
and Native law issues were involved.
CHAIRMAN TAYLOR asked MS. BEHR for suggestions on how they could
"firm up" Section 12. CHAIRMAN TAYLOR said he preferred a one-year
deadline. He asked MS. BEHR if it was unusual that regulations
would take two years to develop. MS. BEHR replied that the
Department of Law already imposes a standard that requires new
public comment on a project that has been noticed more than a year
before. MS. BEHR stated that with the budget crisis and thinly
stretched personnel in many departments, she is concerned with
setting "hard and fast" time lines. She proposed that, due to the
cost/benefit analysis and multiple rounds of public notice, the
fiscal notes that agencies submit will be higher than those
associated with the bill now. She concluded that the new
requirements will require new personnel, and she is "not sure the
money is around to do that".
CHAIRMAN TAYLOR commented that the fiscal notes attached to the
bill are "appalling." One department states, "The cost of
performing the (cost/benefit) analysis would outweigh the benefits
obtained from doing the analysis." CHAIRMAN TAYLOR said, "They will
go out and collect a tax, even though the cost of collecting the
tax loses money, and that they wouldn't want to know that...that
seems odd to me."
Number 333
SENATOR DONLEY mentioned another change to Section 4 that allows a
commissioner to determine that the matter involved is so minor that
the cost/benefit analysis is unnecessary. CHAIRMAN TAYLOR asked
SENATOR DONLEY if this might be "an excuse frequently used".
SENATOR DONLEY agreed it might, but maintained that the bill still
represents a step forward.
MS. BEHR made preliminary comments on the new committee substitute.
She said SB 24 still has significant legal problems, as she
testified to at the last hearing. She said she is available to work
with the committee to come up with workable solutions that can be
achieved within the State's current fiscal capabilities.
MS. BEHR reported her continued concern with the ability of state
agencies to obtain information from businesses, given our state's
strong constitutional right to privacy. CHAIRMAN TAYLOR asked how
the federal government obtains this information, and MS. BEHR
replied she did not know. She suggested individual contractors may
be needed to collect information.
Number 344
MS. BEHR repeated her concern that regulations may be tested and
overturned on the basis of an inadequate cost/benefit analysis. She
noted the federal government has a provision that regulations
cannot be voided simply on the basis of a cost/benefit analysis; SB
24 has no such provision. MS. BEHR argued this language is quite
unusual and creates an unstable business climate. MS. BEHR said the
inclusion of aesthetics and unquantifiable factors in the
cost/benefit analysis requirement is confusing and would be
difficult to argue in court.
SENATOR DONLEY said he is beginning to see a pattern of continued
criticism of this bill, even when suggested changes have been
incorporated into it. He remarked he will continue to work on this
bill.
CHAIRMAN TAYLOR stated he understands MS. BEHR'S concern about
possible obstruction of regulations, but said this is easily
remedied by inserting an immunity provision. SENATOR DONLEY made a
note of this.
Number 379
SENATOR TORGERSON again suggested the committee look at the
exemption given to the Department of Natural Resources (DNR). He
thought DNR could be included, especially if the immunity clause is
incorporated into the bill.
SENATOR HALFORD remarked he has seen this issue stonewalled for 15
years. He suggested the true cure would be to change the core
sections of the Administrative Procedures Act. He said the phrases
"reasonably necessary" and "implied direction" in Sections 1 and
2 of the APA "give license to regulators to do whatever they
please". He said under the current APA, the standard is so skewed
against a challenge to a regulation, they can't win. He suggested
that had they changed those two things in the authorization
sections of the APA, they would have changed the balance of power
in favor of private parties, and "we'd be a heck of a lot better
off".
SENATOR HALFORD stated his support for the intent of SB 24 and
noted the APA has not been amended since 1959. He added,
"Government has become far more aggressive from then to now".
Number 418
SENATOR DONLEY appreciated SENATOR HALFORD'S suggestion, but
predicted it would produce more opposition from the Administration
in the form of multi-million dollar fiscal notes. He stated that he
has tried to work with the Administration on this bill but, "When
we take their suggestion, and then they criticize us for taking it,
it seems unreasonable".
DEBORAH BEHR reiterated that the bill has legal definition problems
and she is willing to work with the committee on it. She noted that
no other APA from any state contains the type of language proposed
in SB 24. She offered to make some suggestions for improvement from
the model Administrative Procedures Act.
CHAIRMAN TAYLOR asked MS. BEHR if she could address the "root
problem" raised by SENATOR HALFORD. MS. BEHR replied the deletion
of "implied terms" would require legislative statutes to be more
detailed and she, as regulations attorney, would have to reject all
regulations not totally rooted in statute. She stressed that all
typically standard changes not specified in the statute would have
to wait until the Legislature was in session in order to be
considered.
Number 455
CHAIRMAN TAYLOR mentioned the Legislature currently spends a good
deal of time correcting mistakes made in past legislation. He said
SB 24 might take up some time, but "some of us get kind of
frustrated with it after a while, that we can't seem to have any
impact on those regulations".
CHAIRMAN TAYLOR asked MS. BEHR how she treats legislative intent.
MS. BEHR replied, when she is looking at statutes in order to
determine the consistency of regulations, she looks at the language
of the statute as well as any purpose or intent provided with the
statute. CHAIRMAN TAYLOR asked if regulations would be restricted
if the Legislature included more intent language with each statute.
MS. BEHR replied that would be somewhat helpful, but under SENATOR
HALFORD'S suggestion, a regulation could not be adopted unless it
was applicable under the express terms of the statute.
CHAIRMAN TAYLOR commented that last year Governor Knowles had
vetoed the thirty pages of intent language that the Legislature had
included with the budget. MS. BEHR replied appropriations bills do
not generate regulations.
Number 490
SENATOR TORGERSON asked MS. BEHR for an example of an emergency
regulation and MS. BEHR cited the movement of a pilot station to a
more appropriate location in the wake of the Exxon Valdez oil
spill. MS. BEHR said an emergency regulation, which is rare, must
be immediately necessary to preserve public safety. She clarified
that an emergency order is different from an emergency regulation
and is used by only a few departments, such as Fish and Game.
SENATOR TORGERSON asked about the requirement that emergency
regulations be adopted into permanent regulation within 120 days or
are become void. MS. BEHR replied that the base language underlying
that is current law and only technical, minor changes have been
made in SB 24.
SENATOR DONLEY asked CHAIRMAN TAYLOR if SB 24 could be heard again
on Wednesday. CHAIRMAN TAYLOR assured him it could and SENATOR
DONLEY said he would work on the bill in the meantime.
CHAIRMAN TAYLOR asked if there was further testimony on SB 24.
Hearing none, CHAIRMAN TAYLOR adjourned at 2:15 p.m.
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