HB 105: "An Act relating to regulations of state agencies and to administrative hearings, amending the Administrative Procedure Act, and establishing the division of regulations; and providing for an effective date."
00HOUSE BILL NO. 105 01 "An Act relating to regulations of state agencies and to administrative hearings, 02 amending the Administrative Procedure Act, and establishing the division of 03 regulations; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 18.56.088(a) is amended to read: 06 (a) Except for AS 44.62.310 and 44.62.312, regarding public meetings, and 07 AS 44.62.320 [AS 44.62.320(a)] regarding legislative review of regulations, AS 44.62 08 (Administrative Procedure Act) does not apply to this chapter. The corporation shall 09 make available to members of the public copies of the regulations adopted under (b) - 10 (e) of this section. Within 45 days after adoption, the chair [CHAIRMAN] of the 11 board shall submit a regulation adopted under (b) - (e) of this section to the chair 12 [CHAIRMAN] of the Administrative Regulation Review Committee under 13 AS 24.20.400 - 24.20.460. [THE PROVISIONS OF AS 44.62.320(a) APPLY TO 14 REGULATIONS ADOPTED UNDER (b) - (e) OF THIS SECTION.]
01 * Sec. 2. AS 24.20.400 is amended to read: 02 Sec. 24.20.400. ADMINISTRATIVE REGULATION REVIEW COMMITTEE 03 ESTABLISHED. The Administrative Regulation Review Committee is established as 04 a permanent interim committee of the legislature. The establishment of the committee 05 recognizes the need for prompt legislative review of administrative regulations filed 06 by the lieutenant governor to determine whether repeal of a regulation or other 07 statutory change [ANNULMENT UNDER AS 44.62.320] is appropriate. 08 * Sec. 3. AS 24.20.460 is amended to read: 09 Sec. 24.20.460. POWERS. The Administrative Regulation Review Committee 10 has the following powers: 11 (1) to organize and adopt rules for the conduct of its business; 12 (2) to hold public hearings; 13 (3) to require all state officials and agencies of state government to give 14 full cooperation to the committee or its staff in assembling and furnishing requested 15 information; 16 (4) to examine all administrative regulations to determine if they 17 properly implement legislative intent; 18 (5) [TO MAKE RECOMMENDATIONS FOR LEGISLATIVE 19 ANNULMENT OF ADMINISTRATIVE REGULATIONS UNDER AS 44.62.320; 20 (6)] to prepare and distribute reports, memoranda, or other materials; 21 (6) [(7)] to promote needed revision or repeal of regulations that have 22 been adopted by state departments and agencies and, when the committee determines 23 a regulation should be repealed or amended, to introduce a bill that would enact a 24 statute that would supersede or nullify the regulation; 25 (7) [(8)] to investigate findings that are transmitted to the committee 26 by a standing committee in accordance with AS 24.05.182 and, as appropriate, to 27 either introduce a bill annulling the regulation or exercise the committee's power to 28 suspend the effectiveness of the regulation in accordance with AS 24.20.445. 29 * Sec. 4. AS 44.62.020 is amended by adding a new subsection to read: 30 (b) The division of regulations is established in the Department of 31 Administration. Notwithstanding any other provision of law, a state agency may not
01 adopt, amend, or repeal a regulation. Only the division may adopt, amend, or repeal 02 a regulation on behalf of a state agency. AS 44.62.010 - 44.62.320 apply to all the 03 changes in regulations made by the division. 04 * Sec. 5. AS 44.62.030 is amended to read: 05 Sec. 44.62.030. CONSISTENCY BETWEEN REGULATION AND 06 STATUTE. If [, BY] express or implied terms of a statute grant [, A STATE 07 AGENCY HAS] authority to adopt regulations to implement, interpret, make specific 08 or otherwise carry out the provisions of the statute, a regulation [ADOPTED] is not 09 valid or effective unless consistent with the statute and reasonably necessary to carry 10 out the purpose of the statute. 11 * Sec. 6. AS 44.62.030 is amended by adding a new subsection to read: 12 (b) A regulation that does not conform to the following requirements is 13 not valid: 14 (1) the regulation may not exceed standards established by pertinent 15 federal statutes or regulations unless specifically required by the state statute the 16 regulation implements, interprets, or otherwise carries out; 17 (2) where applicable, the regulation must set specific performance 18 standards that do not require extremely advanced technology to comply with; 19 (3) if specific scientifically measurable performance standards are 20 included in the regulation, those standards must have been reviewed and approved 21 by one or more individuals qualified to competently consider those standards; 22 (4) the cost of implementing the regulation must have been 23 adequately considered and a reasonable effort made to incorporate the least costly 24 approach, taking into account social as well as quantifiable economic factors; 25 (5) the regulation may not require compliance by a business or 26 other nongovernmental entity in a form that duplicates requirements already 27 imposed on the entity by another state or federal statute or regulation. 28 * Sec. 7. AS 44.62.040(a) is amended to read: 29 (a) The division [EVERY STATE AGENCY WHICH BY STATUTE 30 POSSESSES REGULATION-MAKING AUTHORITY] shall submit to the 31 lieutenant governor for filing a certified original and one duplicate copy of every
01 adoption, amendment, or repeal of a regulation [OR ORDER OF REPEAL 02 ADOPTED BY IT,] except one that 03 (1) establishes or fixes rates, prices, or tariffs; 04 (2) relates to the use of public works, including streets and 05 highways, under the jurisdiction of a state agency if the effect of the order is 06 indicated to the public by means of signs or signals; or 07 (3) is directed to a specifically named person or to a group of 08 persons and does not apply generally throughout the state. 09 * Sec. 8. AS 44.62.050 is amended to read: 10 Sec. 44.62.050. STYLE AND FORMS. The division [DEPARTMENT OF 11 LAW] shall prepare and shall revise when necessary a drafting manual for 12 administrative regulations that prescribes the style and forms for submitting 13 regulations under AS 44.62.040. 14 * Sec. 9. AS 44.62.120 is amended to read: 15 Sec. 44.62.120. VOLUNTARY SUBMITTING AND PUBLICATION. With 16 the approval of the lieutenant governor, the division or an [A STATE] agency in the 17 legislative branch may submit to the lieutenant governor for filing the adoption, 18 amendment, or [A REGULATION OR ORDER OF] repeal of a regulation not 19 required by AS 44.62.040 to be submitted. If the lieutenant governor accepts the 20 regulation change [OR ORDER OF REPEAL], the lieutenant governor shall endorse 21 and file it as required in AS 44.62.080, and may publish the change [REGULATION 22 OR ORDER OF REPEAL] in the manner the lieutenant governor considers proper. 23 * Sec. 10. AS 44.62.125 is amended to read: 24 Sec. 44.62.125. REGULATIONS ATTORNEY. (a) In the division 25 [DEPARTMENT OF LAW] a particular attorney, called the regulations attorney, shall 26 be assigned, as the attorney's primary responsibility, the functions relating to the 27 handling of legal issues involving administrative regulations. 28 (b) The regulations attorney [DEPARTMENT] shall 29 (1) advise all state [ADMINISTRATIVE] agencies of the nature and 30 use of administrative regulations; 31 (2) alert the other division staff and state agencies to statutes that
01 need to be implemented, interpreted, or made clear by regulation; 02 (3) continually review the regulations [, MAKE 03 RECOMMENDATIONS TO THE RESPECTIVE AGENCIES] concerning deficiencies, 04 conflicts, and obsolete provisions in and the need for reorganization or revision of the 05 regulations, and prepare proposed regulations to be considered for adoption 06 [ADOPTED] by the division [AGENCIES], correcting or removing the deficiencies, 07 conflicts, and obsolete provisions; 08 (4) work with all state [ADMINISTRATIVE] agencies [POSSESSING 09 REGULATION-MAKING POWER] in drafting all new regulations, advising the 10 agencies of legal problems encountered, and ensuring compliance with the drafting 11 manual for administrative regulations prepared by the division [DEPARTMENT OF 12 LAW] under AS 44.62.050; 13 (5) assist the division [AGENCIES] in holding public hearings under 14 AS 44.62.210; 15 (6) to the extent necessary after regulations have been filed by the 16 lieutenant governor, edit and revise them for consolidation into the Alaska 17 Administrative Code in the manner provided for the revisor of statutes under 18 AS 01.05.031; 19 (7) draft bills for consideration by the governor to transfer matter that 20 should be statutory law from the Alaska Administrative Code to the Alaska Statutes 21 and to clarify [AGENCY] regulatory power when clarification is needed. 22 * Sec. 11. AS 44.62.130(b) is amended to read: 23 (b) The division [DEPARTMENT OF LAW] shall prescribe a uniform system 24 of indexing, numbering, arrangement of text, and citation of authority and history notes 25 for the Alaska Administrative Code. 26 * Sec. 12. AS 44.62.180 is amended to read: 27 Sec. 44.62.180. EFFECTIVE DATE. An adoption, amendment, or repeal 28 of a [A] regulation [OR AN ORDER OF REPEAL] filed by the lieutenant governor 29 becomes effective on the 30th day after the date of filing unless 30 (1) otherwise specifically provided by the statute under which the 31 regulation change [OR ORDER OF REPEAL] is adopted, in which event it becomes
01 effective on the day prescribed by the statute; 02 (2) it is a change dealing with [REGULATION PRESCRIBING] the 03 organization or procedure of a state [AN] agency, in which event it becomes effective 04 upon filing by the lieutenant governor or upon a later date specified by the division 05 [STATE AGENCY] in a written instrument submitted with, or as part of, the change 06 [REGULATION OR ORDER OF REPEAL]; 07 (3) it is an emergency regulation change [OR ORDER OF REPEAL] 08 adopted under AS 44.62.250, in which case the finding and the statement of the facts 09 constituting the emergency shall be submitted to the lieutenant governor, together with 10 the emergency change [REGULATION OR ORDER OF REPEAL], which, in that 11 event only, becomes effective upon filing by the lieutenant governor or upon a later 12 date specified by the division [STATE AGENCY] in a written instrument submitted 13 with, or as part of, the emergency change [REGULATION OR ORDER OF 14 REPEAL]; 15 (4) a later date is prescribed by the division [STATE AGENCY] in a 16 written instrument submitted with, or as part of, the change [REGULATION OR 17 ORDER OF REPEAL]. 18 * Sec. 13. AS 44.62 is amended by adding a new section to read: 19 Sec. 44.62.185. DEVELOPMENT OF PROPOSED CHANGE. Before 20 publishing a notice of proposed regulation change under AS 44.62.190, the following 21 steps must be accomplished in the following sequence with respect to the proposed 22 adoption, amendment, or repeal of the regulation: 23 (1) the division shall gather and consider relevant scientific and other 24 data; 25 (2) the division shall prepare an initial draft of the proposed regulation 26 change; 27 (3) the initial draft shall be submitted for review and approval by 28 individuals qualified to analyze it and all scientific and other data upon which it is 29 based; 30 (4) upon approval of a change under (3) of this section, the division 31 shall perform a cost-benefit analysis and adjust the proposal as necessary based upon
01 the results of the analysis; 02 (5) the proposed change shall be submitted to the affected state agency 03 for review and approval of its feasibility; 04 (6) the proposed change shall be submitted for review and comment to 05 representatives of businesses that would be most affected by the change; 06 (7) the division shall adjust the proposal as necessary to accommodate 07 the suggestions received as a result of the review under (5) and (6) of this section. 08 * Sec. 14. AS 44.62.190(a) is amended to read: 09 (a) At least 30 days before the adoption, amendment, or repeal of a regulation, 10 notice of the proposed change [ACTION] shall be 11 (1) published in the newspaper of general circulation or trade or 12 industry publication that the division [STATE AGENCY] prescribes and in the Alaska 13 Administrative Journal; in the discretion of the division [STATE AGENCY GIVING 14 THE NOTICE], the requirement of publication in a newspaper or trade or industry 15 publication may be satisfied by using a combination of publication and broadcasting; 16 when broadcasting the notice, the division [AN AGENCY] may use an abbreviated 17 form of the notice if the broadcast provides the name and date of the newspaper or 18 trade or industry journal where the full text of the notice can be found; 19 (2) mailed to every person who has filed a request for notice of 20 proposed change [ACTION] with the division [STATE AGENCY]; 21 (3) [IF THE AGENCY IS WITHIN A DEPARTMENT,] mailed or 22 delivered to the head of the affected state agency [COMMISSIONER OF THE 23 DEPARTMENT]; 24 (4) when appropriate in the judgment of the division [AGENCY], 25 (A) mailed to a person or group of persons whom the division 26 [AGENCY] believes is interested in the proposed change [ACTION]; and 27 (B) published in the additional form and manner the division 28 [STATE AGENCY] prescribes; 29 (5) furnished the Department of Law together with a copy of the 30 proposed change [REGULATION, AMENDMENT, OR ORDER OF REPEAL FOR 31 THE DEPARTMENT'S USE IN PREPARING THE OPINION REQUIRED AFTER
01 ADOPTION AND BEFORE FILING BY AS 44.62.060]; 02 (6) furnished to all incumbent State of Alaska legislators and the 03 Legislative Affairs Agency; 04 (7) furnished to the standing committee of each house of the legislature 05 having legislative jurisdiction over the subject matter treated by the proposed change 06 [REGULATION] under the Uniform Rules of the Alaska State Legislature, together 07 with a copy of the proposed change [REGULATION, AMENDMENT, OR ORDER 08 OF REPEAL] for the committee's use in conducting the review authorized by 09 AS 24.05.182; 10 (8) furnished to the staff of the Administrative Regulation Review 11 Committee. 12 * Sec. 15. AS 44.62.190(d) is amended to read: 13 (d) Along with a notice furnished under (a)(2), (4)(A), (6), (7), or (8) of this 14 section, the division [STATE AGENCY] shall include the reason for the proposed 15 change [ACTION], the initial cost to the affected state agency of implementation, the 16 estimated annual costs to the state agency of implementation, the name of the contact 17 person for the division [STATE AGENCY], and the origin of the proposed action. 18 * Sec. 16. AS 44.62.200 is amended to read: 19 Sec. 44.62.200. CONTENTS OF NOTICE. (a) The notice of proposed 20 adoption, amendment, or repeal of a regulation must include 21 (1) a statement of the time, place, and nature of proceedings for 22 adoption [, AMENDMENT, OR REPEAL] of the regulation change; 23 (2) reference to the authority under which the change [REGULATION] 24 is proposed and a reference to the particular code section or other provisions of law 25 that are being implemented, interpreted, or made specific; 26 (3) an informative summary of the [PROPOSED] subject of the change 27 [AGENCY ACTION]; 28 (4) other matters prescribed by a statute applicable to the affected 29 [SPECIFIC] agency or to the specific change [REGULATION] or class of regulations; 30 (5) a summary of the fiscal information required to be prepared under 31 AS 44.62.195.
01 (b) A regulation that is adopted, amended, or repealed may vary in content 02 from the summary specified in (a)(3) of this section if the subject matter of the change 03 [REGULATION] remains the same and the original notice was written so as to assure 04 that members of the public are reasonably notified of the proposal [PROPOSED 05 SUBJECT OF AGENCY ACTION] in order for them to determine whether their 06 interests could be affected by [AGENCY] action on that subject. 07 (c) The division [AN AGENCY THAT ISSUES A NOTICE UNDER THIS 08 SECTION] shall assure that the notice is prepared in a form adequate for publication 09 in the Alaska Administrative Journal. 10 * Sec. 17. AS 44.62.210 is amended to read: 11 Sec. 44.62.210. PUBLIC PROCEEDINGS. (a) On the date and at the time 12 and place designated in the notice the division [AGENCY] shall give each interested 13 person or the person's authorized representative, or both, the opportunity to present 14 statements, arguments, or contentions in writing, with or without opportunity to present 15 them orally. The division [STATE AGENCY] may accept material presented by any 16 form of communication authorized by this chapter and shall consider all relevant 17 matter presented to it before adopting, amending, or repealing a regulation. 18 (b) At a hearing under this section the division [AGENCY] or its authorized 19 representative may administer oaths or affirmations, and may continue or postpone the 20 hearing to the time and place that [WHICH] it determines appropriate. 21 * Sec. 18. AS 44.62.220 is amended to read: 22 Sec. 44.62.220. RIGHT TO PETITION. Unless the right to petition for 23 adoption of a regulation is restricted by statute to a designated group or the procedure 24 for the petition is prescribed by statute, an interested person may petition the division 25 [AN AGENCY] for the adoption, amendment, or repeal of a regulation as provided 26 in AS 44.62.180 - 44.62.290. The petition must state clearly and concisely 27 (1) the substance or nature of the regulation change [, AMENDMENT, 28 OR REPEAL] requested; 29 (2) the reasons for the request; 30 (3) reference to the authority of the division [AGENCY] to take the 31 action requested.
01 * Sec. 19. AS 44.62.230 is amended to read: 02 Sec. 44.62.230. PROCEDURE ON PETITION. Upon receipt of a petition 03 requesting the adoption, amendment, or repeal of a regulation under AS 44.62.180 - 04 44.62.290, the division [A STATE AGENCY] shall, within 30 days, deny the petition 05 in writing or schedule the matter for public hearing under AS 44.62.190 - 44.62.210. 06 However, if the petition is for an emergency regulation change, and the division 07 [AGENCY] finds that an emergency exists, the requirements of AS 44.62.190 - 08 44.62.210 do not apply, and the division [AGENCY] may submit the change 09 [REGULATION] to the lieutenant governor immediately after making the finding of 10 emergency and putting the change [REGULATION] into proper form. 11 * Sec. 20. AS 44.62 is amended by adding a new section to read: 12 Sec. 44.62.242. RETROACTIVE ACTION PROHIBITED. The adoption, 13 amendment, or repeal of a regulation under this chapter has prospective effect only. 14 * Sec. 21. AS 44.62.250 is amended to read: 15 Sec. 44.62.250. EMERGENCY REGULATIONS. A regulation change [OR 16 ORDER OF REPEAL] may be adopted as an emergency regulation change [OR 17 ORDER OF REPEAL] if the division [A STATE AGENCY] makes a written finding, 18 including a statement of the facts that constitute the emergency, that the adoption of 19 the change [REGULATION OR ORDER OF REPEAL] is necessary for the immediate 20 preservation of the public peace, health, safety, or general welfare. The requirements 21 of AS 44.62.190 - 44.62.210 [AS 44.62.060 AND 44.62.190 - 44.62.210] do not apply 22 to the initial adoption of an emergency regulation change [REGULATIONS]; 23 however, upon adoption of an emergency regulation change the division [ADOPTING 24 AGENCY] shall immediately submit a copy of it to the lieutenant governor for filing 25 and for publication in the Alaska Administrative Register, and within five days after 26 filing by the lieutenant governor the division [AGENCY] shall give notice of the 27 adoption in accordance with AS 44.62.190(a). Failure to give the required notice by 28 the end of the 10th day automatically repeals the regulation change. 29 * Sec. 22. AS 44.62.260 is amended to read: 30 Sec. 44.62.260. LIMITATION ON EFFECTIVE PERIOD OF EMERGENCY 31 REGULATION CHANGES [REGULATIONS]. (a) A change [REGULATION]
01 adopted as an emergency regulation change does not remain in effect more than 120 02 days unless the division [ADOPTING AGENCY] complies with AS 44.62.190 - 03 44.62.210 [AS 44.62.060 AND 44.62.190 - 44.62.210] either before submitting the 04 change [REGULATION] to the lieutenant governor or during the 120-day period. 05 (b) Before the expiration of the 120-day period, the division [AGENCY] shall 06 transmit to the lieutenant governor for filing a certification that AS 44.62.190 - 07 44.62.210 [AS 44.62.060 AND 44.62.190 - 44.62.210] were complied with before 08 submitting the regulation change to the lieutenant governor, or that the division 09 [AGENCY] complied with those sections within the 120-day period. Failure to so 10 certify repeals the emergency regulation change; it may not be renewed or refiled as 11 an emergency regulation change. 12 * Sec. 23. AS 44.62.290(b) is amended to read: 13 (b) Only this section and AS 44.62.180 apply to a regulation change that deals 14 with [PRESCRIBES] the organization or procedure of a state [AN] agency. 15 * Sec. 24. AS 44.62.330 is amended by adding a new subsection to read: 16 (e) Notwithstanding any other provision of law, an administrative hearing 17 subject to AS 44.62.330 - 44.62.630 that involves the application, interpretation, or 18 implementation of a regulation may be conducted only by the division of regulations 19 in the Department of Administration. When an administrative proceeding involving 20 the application, interpretation, or implementation of a regulation reaches the hearing 21 stage, the agency shall transfer all pertinent records involving the proceeding to the 22 division. AS 44.62.330 - 44.62.630 apply to all hearings held by the division under 23 this subsection. 24 * Sec. 25. AS 44.62.640(a) is amended by adding a new paragraph to read: 25 (5) "division" means the division of regulations in the Department of 26 Administration. 27 * Sec. 26. AS 44.88.085(a) is amended to read: 28 (a) Except for AS 44.62.310 and 44.62.312 regarding public meetings, and 29 except for AS 44.62.320 [AS 44.62.320(a)] regarding legislative review of regulations, 30 the provisions of the Administrative Procedure Act regarding the adoption of 31 regulations (AS 44.62.040 - 44.62.320) do not apply to the authority. The authority
01 shall make available to members of the public copies of the regulations adopted under 02 this section. Within 45 days after adoption of a regulation under this section, the 03 chairman of the authority shall submit the regulation adopted to the chairman of the 04 Administrative Regulation Review Committee under AS 24.20.400 - 24.20.460. 05 * Sec. 27. AS 44.62.060, 44.62.240, and 44.62.320(a) are repealed. 06 * Sec. 28. All rules and regulations adopted by a department, board, commission, public 07 corporation, or other agency of the executive branch of state government in effect on the 08 effective date of this section remain in effect until repealed or amended by the division of 09 regulations. 10 * Sec. 29. The revisor of statutes shall prepare a bill conforming the Alaska Statutes to the 11 changes made by this Act. The bill shall be presented to the House and Senate Rules 12 Committees for introduction on the first day of the Second Regular Session of the Nineteenth 13 Alaska State Legislature. 14 * Sec. 30. Section 29 of this Act takes effect immediately under AS 01.10.070(c). 15 * Sec. 31. Sections 1 - 28 of this Act take effect July 1, 1996.