Legislature(2003 - 2004)

03/19/2003 01:04 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 34 - REPEAL SUNSET OF NEGOTIATED REG.MAKING                                                                                
                                                                                                                                
Number 0369                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE BILL  NO. 34, "An Act relating  to negotiated regulation                                                               
making; and providing for an effective date."                                                                                   
                                                                                                                                
Number 0420                                                                                                                     
                                                                                                                                
BARBARA COTTING,  Staff to Representative Jim  Holm, Alaska State                                                               
Legislature,   on  behalf   of   Representative  Holm,   sponsor,                                                               
mentioned that  there are two  fiscal notes  for HB 34,  and drew                                                               
attention  to   the  analysis  provided  on   the  Department  of                                                               
Revenue's  fiscal note.   This  analysis in  part says,  "The Tax                                                               
Division  of  the  Department  of  Revenue  last  year  used  the                                                               
negotiated  regulation  making process  to  draft  and adopt  new                                                               
regulations for  charitable gaming, and found  the process useful                                                               
and  effective."   She  went  on  to  explain that  the  original                                                               
legislation  [SCS  CSHB 264(STA)]  that  created  the process  of                                                               
negotiated regulation  making -  referred to  as "Neg-Reg"  - was                                                               
passed in 1998,  and that it had  a sunset date of  July 1, 2003,                                                               
for the purpose of reviewing whether the process works.                                                                         
                                                                                                                                
MS.  COTTING remarked  that since  the process  has proven  to be                                                               
very  successful,  HB  34  was  introduced  for  the  purpose  of                                                               
repealing  the sunset  provisions  of  the original  legislation.                                                               
She  posited that  the Neg-Reg  process makes  regulation writing                                                               
more  applicable  to reality  because  it  allows any  interested                                                               
parties  that would  be affected  by  forthcoming regulations  to                                                               
work together  as a  team and  submit recommendations  before the                                                               
regulations are published for public  review.  She said that this                                                               
Neg-Reg process  has been used  with tremendous success  over the                                                               
last  few  years since  the  bill  was  passed, most  notably  in                                                               
writing "cruise ship" regulations.   She offered that the Neg-Reg                                                               
process eliminates  lawsuits and  lengthy public  appeals because                                                               
everything  has been  ironed  out ahead  of  time; the  resulting                                                               
regulations are much  more practical and enforceable  than if all                                                               
the parties had not been involved from the beginning.                                                                           
                                                                                                                                
MS.  COTTING  opined that  it  is  very  important to  keep  this                                                               
process in  statute as  a guideline.   Apparently,  she remarked,                                                               
the process  could be used informally,  but if it is  actually in                                                               
statute, people who  aren't familiar with it can go  to a section                                                               
of  statute for  guidance.   After  reiterating  that the  sunset                                                               
provisions of the original legislation  take effect this upcoming                                                               
July  1,  she urged  the  committee  to pass  HB  34  as soon  as                                                               
possible to avoid the statutory Neg-Reg process from sunsetting.                                                                
                                                                                                                                
Number 0623                                                                                                                     
                                                                                                                                
CRAIG   TILLERY,   Assistant  Attorney   General,   Environmental                                                               
Section,  Civil Division  (Anchorage), Department  of Law  (DOL),                                                               
said that the  administration has not taken a position  on HB 34,                                                               
that  a review  of the  legislation  has not  revealed any  legal                                                               
problems with it, and that  the DOL believes it accomplishes what                                                               
the sponsor  intends.   He relayed  his experience  involving the                                                               
"cruise ship negotiated rule making":                                                                                           
                                                                                                                                
     That  negotiated rule  making was  entered into  at the                                                                    
     direction  of  the   legislature,  which  provided  the                                                                    
     statute  that   we  should   do  regulations   and,  if                                                                    
     appropriate,  that  we  should   do  them  through  the                                                                    
     negotiated  rule-making  process.     That  law  became                                                                    
     effective in  July of  2001, and  within about  four or                                                                    
     five months  our RFP [request  for proposals]  was sent                                                                    
     out  for  a  facilitator through  the  negotiated  rule                                                                    
     making  and the  commissioner-appointed members.   It's                                                                    
     fairly instructive to look [at]  who was appointed.  It                                                                    
     was  representatives of  cruise lines,  both large  and                                                                    
     small  cruise ships;  there were  environmental groups;                                                                    
     the United States Coast  Guard participated; the Alaska                                                                    
     Marine  Highway  System participated;  Native  leaders;                                                                    
     engineering experts; local  governmental officials; and                                                                    
     the Department of Environmental Conservation.                                                                              
                                                                                                                                
     When you  do this kind of  process, what we did  was to                                                                    
     identify  the  particular  issues  that  we  felt  were                                                                    
     appropriate  for the  process.   It required  basically                                                                    
     three meetings in person  by the negotiated rule-making                                                                    
     group, and then  a final teleconference.   All of these                                                                    
     sessions are  open to  the public,  who are  welcome to                                                                    
     come.  There  weren't a lot of public  members there, I                                                                    
     think  primarily   because  the   representatives  were                                                                    
     chosen  fairly well.   The  stated  goal of  negotiated                                                                    
     rule making is to achieve  consensus or to identify, if                                                                    
     that's impossible,  those areas where  consensus cannot                                                                    
     be  achieved.   In  our  situation,  the meetings  went                                                                    
     fairly well.                                                                                                               
                                                                                                                                
     There  was  some  debate; there  was  little  acrimony,                                                                    
     although the subject had been  acrimonious in the past.                                                                    
     There  was  a  lot  of understanding  that  was  gained                                                                    
     between the  different parties, and  a lot  of problems                                                                    
     were  solved.   And where,  in the  regular rule-making                                                                    
     process,  you might  propose  regulations, then  you'll                                                                    
     get comments  back from both  sides, sometimes  you end                                                                    
     up  with ships  passing in  the  night.   And, in  this                                                                    
     case,  our ships  collided  head on  and  were able  to                                                                    
     resolve  things  during  the meeting,  pretty  much  to                                                                    
     everyone's  satisfaction.   Consensus  was achieved  on                                                                    
     virtually all  important areas;  there are  about three                                                                    
     secondary issues that were not  resolved that came back                                                                    
     to  the  commissioner  for  a   final  decision.    The                                                                    
     regulations were proposed by  the department and became                                                                    
     final in November  of 2002, so the  entire process took                                                                    
     about a year to finish.                                                                                                    
                                                                                                                                
Number 0802                                                                                                                     
                                                                                                                                
MR. TILLERY continued:                                                                                                          
                                                                                                                                
     My impressions  of what we did  was that it was  a very                                                                    
     effective  process.   It allowed  for  the exchange  of                                                                    
     information that made for a  better set of regulations.                                                                    
     What  we don't  know, what  I suspect  was accomplished                                                                    
     but is  very hard to  measure, is  sort of the  lack of                                                                    
     lawsuits being filed; we have  not had anyone challenge                                                                    
     them to date.  And  it's also impossible to measure the                                                                    
     lack of  violations that might occur  because of better                                                                    
     clarity, because the regulations  were drafted in a way                                                                    
     that was clear  to all parties and that  worked for all                                                                    
     parties.  But I think  that all of those are components                                                                    
     of this being [an] effective process.                                                                                      
                                                                                                                                
     I  would  also  note  that  it  is  a  somewhat  costly                                                                    
     process.   For the  state, my experience  has indicated                                                                    
     it's critical  to have  a facilitator,  and that  is an                                                                    
     expensive  proposition.   For the  parties, several  of                                                                    
     the  parties have  noted that  it was  pretty expensive                                                                    
     for them  to attend; [for]  some of the  groups, people                                                                    
     were  attending without  compensation,  so that's  time                                                                    
     out  of their  day.   There's  travel involved  because                                                                    
     these meetings do generally have to be face to face.                                                                       
                                                                                                                                
     I'd also note  that negotiated rule making  is not good                                                                    
     in  all situations;  in  fact, it's  not  good in  most                                                                    
     situations.      It    does   require   some   specific                                                                    
     circumstances.    It   requires  identifiable  interest                                                                    
     groups,  on  all  sides  of an  issue;  it  requires  a                                                                    
     manageable number  of different interests;  it requires                                                                    
     issues that are amenable  to consensus; and it requires                                                                    
     parties that  will agree to not  revisit decisions that                                                                    
     have already  been made  by the  legislature -  this is                                                                    
     not  a time  to  re-fight  the cruise-ship  legislation                                                                    
     battle.   And, again, in this  case we were able  to do                                                                    
     that and work pretty well.                                                                                                 
                                                                                                                                
Number 0897                                                                                                                     
                                                                                                                                
MR. TILLERY concluded:                                                                                                          
                                                                                                                                
     In summary,  I believe that  this is a tool  that needs                                                                    
     to   be  in   the   toolbox;  it   will  have   limited                                                                    
     application, but where  it has application it  can be a                                                                    
     very important method of moving  forward.  And one more                                                                    
     thing  I  would  point  out  is  that  we  had  another                                                                    
     instance   with   nontank    vessel   legislation,   or                                                                    
     regulations, where negotiated rule  making was not used                                                                    
     formally.    That  is, we  didn't  specifically  follow                                                                    
     those rules.  Nevertheless,  the outline in the statute                                                                    
     was  followed, and  that also  was  quite a  successful                                                                    
     process.   So there  certainly is importance  to having                                                                    
     the  framework  in  the  statutes   even  if  it's  not                                                                    
     formally used.                                                                                                             
                                                                                                                                
REPRESENTATIVE GARA asked who pays for the facilitators.                                                                        
                                                                                                                                
MR.  TILLERY indicated  that  facilitators are  paid  for by  the                                                               
state, adding  that this worked  well in the cruise  ship context                                                               
because the  fee that the cruise  ships were paying paid  for the                                                               
facilitator.   He  acknowledged that  in other  situations, there                                                               
might  not  necessarily  be  such  a  straightforward  source  of                                                               
revenue.    And although  a  facilitator  was  not used  for  the                                                               
charitable  gaming regulations,  he  remarked that  for both  the                                                               
cruise ship  regulations and the  nontank vessel  regulations, it                                                               
was  very   important  to  have   a  facilitator   because  those                                                               
discussions involved very contentious  issues and the facilitator                                                               
kept people on track.                                                                                                           
                                                                                                                                
MR.  TILLERY, in  response to  questions,  said that  the fee  he                                                               
referred to  earlier was the  "per passenger berth fee"  that was                                                               
part  of  the  cruise  ship  legislation.    This  fee,  although                                                               
technically  general  fund  (GF)  revenue, goes  into  a  special                                                               
account   that   the   legislature  has   indicated   should   be                                                               
appropriated for specific purposes, and  he likened the manner in                                                               
which this fee  is dealt with as similar to  "the response fund."                                                               
He  also  mentioned that  the  facilitator  used in  the  Neg-Reg                                                               
process  for both  the cruise  ship regulations  and the  nontank                                                               
vessel regulations was Brian Rogers.                                                                                            
                                                                                                                                
REPRESENTATIVE  GARA asked  Mr. Tillery  if he  could provide  an                                                               
estimate of the facilitator's cost.                                                                                             
                                                                                                                                
Number 1141                                                                                                                     
                                                                                                                                
MR. TILLERY asked  Representative Gara to refer  that question to                                                               
the   Department   of    Environmental   Conservation   (DEC)   -                                                               
specifically  Gretchen Keiser  [Program Manager,  Water Discharge                                                               
Permits & Certification Plan].   In response to further questions                                                               
regarding  having  a facilitator  during  a  Neg-Reg process,  he                                                               
said:                                                                                                                           
                                                                                                                                
     I believe that  in our situation with  the [cruise ship                                                                    
     regulations] it  was very  important.   The legislation                                                                    
     came out, it was very  contentious, and there is always                                                                    
     a chance  in that situation  that you will not  be able                                                                    
     to  achieve consensus  because  of  old animosities  or                                                                    
     because  people  get  off  subject.    What  a  trained                                                                    
     facilitator  can  do  is  to   bring  everybody  --  in                                                                    
     addition  to handling  a  lot of  the  sort of  chores,                                                                    
     which  is keeping  transcripts of  the meetings  and in                                                                    
     keeping updated versions of  where the regulations are,                                                                    
     but what  they can do  is keep everybody on  track, and                                                                    
     they  can  talk  to  people who  might  have  differing                                                                    
     points  of  view  and  bring  things  together.  ...  I                                                                    
     understand that  [in] the view  of the  people involved                                                                    
     in  the  nontank  vessel   activities,  that  that  was                                                                    
     important.   But,  again, ...  it wasn't  used for  the                                                                    
     charitable   gaming  [regulations],   which  also   was                                                                    
     somewhat  contentious   but  was  a   slightly  smaller                                                                    
     problem,  and  my  understanding   is  that  they  were                                                                    
     successful  in   that,  though   I  was   not  directly                                                                    
     involved.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  GARA asked  Mr.  Tillery if,  in his  experience,                                                               
there is  any danger that  negotiated rule making ends  up making                                                               
regulations weaker, in any sense.                                                                                               
                                                                                                                                
MR.  TILLERY opined  that there  is not  a significant  danger of                                                               
that;  it doesn't  make  them  weaker and  it  doesn't make  them                                                               
stronger, he  added, it  makes them better.   He  reiterated that                                                               
one of the problems with  the regular rule-making process is that                                                               
"you  may have  ships  passing  in the  night";  there  may be  a                                                               
concern raised  by one  group that is  not addressed  by another,                                                               
and  this  can lead  to  a  second  round  of the  public  notice                                                               
process,  and  can  lead to  the  commissioner  making  decisions                                                               
without  first hearing  all the  parties address  all the  issues                                                               
directly and  head-on.   He reiterated that  all meetings  in the                                                               
Neg-Reg process are public meetings,  and opined that the Neg-Reg                                                               
process tends to make for a  better process.  He pointed out that                                                               
the Neg-Reg process occurs in  addition to and before the regular                                                               
Administrative  Procedure  Act  (APA)  process.   Hence  the  APA                                                               
process is  much shorter  and [more  productive] because  most of                                                               
the concerns have already been worked out.                                                                                      
                                                                                                                                
REPRESENTATIVE GARA asked whether  parties who participate in the                                                               
Neg-Reg  process are  prevented  from  challenging the  resulting                                                               
regulations.                                                                                                                    
                                                                                                                                
MR. TILLERY  said that  legally, parties  are not  prevented from                                                               
challenging  the resulting  regulations  even  if they  initially                                                               
agreed to them.                                                                                                                 
                                                                                                                                
Number 1387                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE recalled  that the  Neg-Reg  process proved  quite                                                               
helpful  with  the  mariculture regulations,  which  was  a  very                                                               
contentious  issue.   At  the  end of  the  Neg-Reg process,  she                                                               
remarked, parties  came out with  a better understanding  of each                                                               
other's positions, which was important for the [end result].                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG   turned  to  AS   44.62.720(a),  which                                                               
contains the  phrase, "In making  that determination,  the agency                                                               
head  is  advised  to";  he  remarked that  this  is  an  unusual                                                               
statutory phrase.  He also  noted that according to AS 44.62.780,                                                               
actions taken under  AS 44.62.720(a) are not  subject to judicial                                                               
review.   He  asked  Mr. Tillery  if the  term,  "is advised  to"                                                               
carries  any more  weight with  administrative agencies  than the                                                               
term, "may".                                                                                                                    
                                                                                                                                
MR. TILLERY  said that to him,  the two terms are  pretty similar                                                               
in  that  they  are  discretionary rather  than  mandatory.    He                                                               
relayed   that  in   the  cruise   ship   Neg-Reg  process,   the                                                               
commissioner   did  consider   all   the  items   listed  in   AS                                                               
44.62.720(a).                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG turned  attention to AS 44.62.720(a)(7),                                                               
which  read, "the  agency head,  to the  maximum extent  possible                                                               
consistent with  the legal  or other  obligations of  the agency,                                                               
will use  the consensus  of the  committee as  the basis  for the                                                               
regulation  proposed   by  the   agency  under  AS   44.62.010  -                                                               
44.62.320."  He  asked whether the term "will  use" is synonymous                                                               
with "must" or is merely an aspiration.                                                                                         
                                                                                                                                
CHAIR McGUIRE  surmised that in  that paragraph, the  phrase, "to                                                               
the maximum  extent possible consistent  with the legal  or other                                                               
obligations of the agency" acts as a qualifier.                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG  turned  to language  in  statute  that                                                               
pertains to the negotiated  regulation making committee assisting                                                               
the  agency head  in making  decisions.   He asked  how much  the                                                               
agency head must follow what that committee says.                                                                               
                                                                                                                                
MR. TILLERY  said that although the  agency head is not  bound to                                                               
follow  the  recommendations of  the  committee,  as a  practical                                                               
matter it  would be  very unusual  if those  recommendations were                                                               
not followed  as much as possible.   He recalled that  during the                                                               
cruise  ship Neg-Reg  process,  there was  only  one instance  in                                                               
which   the  commissioner   did   not   follow  the   committee's                                                               
recommendations.    In that  instance,  it  was anticipated  that                                                               
after the Neg-Reg  process, certain regulations were  going to be                                                               
approved via a different [ongoing]  process, and so the committee                                                               
was warned  that those  forthcoming regulations  would substitute                                                               
the committee's recommendations for that particular issue.                                                                      
                                                                                                                                
Number 1686                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  turned to  AS 44.62.780, which  in part                                                               
reads:                                                                                                                          
                                                                                                                                
     An agency  action relating to  establishing, assisting,                                                                    
     or   terminating   a   negotiated   regulation   making                                                                    
     committee  under  AS  44.62.710   -  44.62.800  is  not                                                                    
     subject to  judicial review.   Nothing in  this section                                                                    
     bars  judicial   review  if  the  judicial   review  is                                                                    
     otherwise provided [for] by law.                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG asked whether  an agency head's decision                                                               
to disregard the committee's report is judicially reviewable.                                                                   
                                                                                                                                
MR.  TILLERY  said that  as  far  as  that particular  action  is                                                               
concerned, there is nothing to review.   All that can be reviewed                                                               
judicially  are the  regulations themselves,  and those  would be                                                               
reviewed under the APA.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG surmised,  then,  that  the process  of                                                               
disregarding or adopting is in  itself not judicially reviewable;                                                               
rather,  only  the  content  of  the  regulation  [is  judicially                                                               
reviewable].                                                                                                                    
                                                                                                                                
MR.  TILLERY  said that  is  correct,  and  explained that  as  a                                                               
practical  matter, the  agency has  the  discretion to  disregard                                                               
even  a  consensus  recommendation  if necessary.    He  reminded                                                               
members that  when these regulations  come out of  the committee,                                                               
they go  before the public  again and  there can be  changes made                                                               
during that APA process.                                                                                                        
                                                                                                                                
CHAIR  McGUIRE pointed  out  that if  the  regulations are  under                                                               
review,  a  provision of  law  specifies  that greater  deference                                                               
can't be given by the court.                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  turned to  AS 44.62.730  and 44.62.760,                                                               
which refer  to a  convener and a  facilitator respectively.   He                                                               
relayed his understanding that a  convener is one who establishes                                                               
a  committee, while  a facilitator  is more  like a  moderator or                                                               
mediator.  He asked whether his understanding is correct.                                                                       
                                                                                                                                
MR.  TILLERY  agreed and  pointed  out  that the  convener  isn't                                                               
particularly  necessary,  although  the facilitator  is  the  key                                                               
individual.  He relayed that  in the cruise ship Neg-Reg process,                                                               
the commissioner acted as the convener.                                                                                         
                                                                                                                                
Number 1830                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG directed  attention to  AS 44.62.750(c)                                                               
and surmised  that the adoption  of the procedures don't  have to                                                               
be by  regulation and  isn't judicially  reviewable.   He further                                                               
surmised  that  the  negotiated  rule-making  committee  may  use                                                               
informal procedures for the method  of adopting the procedures of                                                               
the committee.                                                                                                                  
                                                                                                                                
MR. TILLERY confirmed those points.                                                                                             
                                                                                                                                
REPRESENTATIVE   GRUENBERG  returned   to  AS   44.62.780,  which                                                               
contains the following  sentence:  "Nothing in  this section bars                                                               
judicial review if  the judicial review is  otherwise provided by                                                               
law".   He inquired as to  the meaning of "otherwise  provided by                                                               
law".                                                                                                                           
                                                                                                                                
MR.  TILLERY explained  that  if there  is  another provision  in                                                               
statute that  allows judicial  review of  regulations, it  may be                                                               
done.   In this  case, [the  language] is  directly aimed  at the                                                               
judicial review provisions for the  adoption of regulations under                                                               
the APA.   In  response to  further questions,  he said  that the                                                               
judicial  review  procedures  of  the APA  apply  to  regulations                                                               
coming out  of the  APA, and  the procedure  [proposed in  HB 34]                                                               
leads into  the APA.   Thus the  regulations developed  under the                                                               
Neg-Reg process  ultimately go  through the  APA under  which the                                                               
judicial review procedures fall.                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  directed  attention  to  AS  44.62.795                                                               
which specifies  that records containing  proprietary information                                                               
can  be kept  confidential.   He  asked whether  the decision  to                                                               
maintain  confidentiality on  a proprietary  basis is  judicially                                                               
reviewable.                                                                                                                     
                                                                                                                                
MR. TILLERY  opined that it would  be, and noted that  this issue                                                               
has come  up many  times with regard  to public  record requests.                                                               
He noted that  this is a well-recognized exception.   Mr. Tillery                                                               
specified  that   he  believes   that  it  would   be  judicially                                                               
reviewable, however  he is  unsure as  to whether  the department                                                               
would've received  the records under promise  of confidentiality.                                                               
He  elaborated,  "Typically we  would  say,  'We believe  they're                                                               
confidential, we will take a  position that they're confidential,                                                               
but a court may rule otherwise.'"                                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG clarified that  he was simply interested                                                               
in whether the court had jurisdiction to consider the issue.                                                                    
                                                                                                                                
MR. TILLERY said that it would under the Public Records Act.                                                                    
                                                                                                                                
Number 1982                                                                                                                     
                                                                                                                                
JEANNETTE    JAMES,   Former    Representative,   Alaska    State                                                               
Legislature, speaking as the sponsor  of SCS CSHB 264(STA), which                                                               
passed in 1998, said that it  is important to extend the original                                                               
legislation into the  future [via HB 34].  She  said that she has                                                               
found  that  specific regulations  targeting  a  select group  or                                                               
objective  can be  troublesome because  often  those writing  the                                                               
regulations  aren't  familiar  with   how  the  regulations  will                                                               
actually impact  people.  Therefore,  she opined,  it's important                                                               
and  appropriate  to have  [the  Neg-Reg  process] available  and                                                               
outlined  in  statute.    She informed  the  committee  that  she                                                               
obtained  the idea  from the  federal government  and some  other                                                               
states that  were doing this.   And although the  Neg-Reg process                                                               
requires a bit more work  upfront, she predicted that the savings                                                               
would  roll forward  because of  the lack  of lawsuits  and other                                                               
things that usually  ensue because of regulations.   [The Neg-Reg                                                               
process]  is cheaper  in the  long run  and it's  more compatible                                                               
with both the government and the public, she concluded.                                                                         
                                                                                                                                
CHAIR McGUIRE thanked Ms. James for  her hard work on this issue.                                                               
She opined that  the idea behind the Neg-Reg process  is to bring                                                               
the  public, the  very  people impacted  by  regulations, to  the                                                               
process.                                                                                                                        
                                                                                                                                
REPRESENTATIVE HOLM  commented that  the Neg-Reg process  is just                                                               
another  tool that  allows the  state  to negotiate  in the  best                                                               
interest of the state.                                                                                                          
                                                                                                                                
Number 2116                                                                                                                     
                                                                                                                                
MARGARET  KING, Program  Manager, Resource  Solutions, University                                                               
of Alaska, explained that the  Resource Solutions program focuses                                                               
on   training,  research,   and   community  services   advancing                                                               
collaborative approaches  to public decision-making.   She agreed                                                               
that [the Neg-Reg  process] is another tool.  Ms.  King turned to                                                               
the  earlier  conversation  with  regard to  facilitators.    She                                                               
relayed that she has found  facilitators to be effective, whether                                                               
they are contracted by an  agency or are already public employees                                                               
with facilitating skills.                                                                                                       
                                                                                                                                
Number 2173                                                                                                                     
                                                                                                                                
CHAIR McGUIRE closed public testimony.                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG  noted  that there  were  other  things                                                               
included  in   the  [original]   legislation  that   were  merely                                                               
conforming.   For example,  Section 3  added another  paragraph -                                                               
(38) - to  AS 36.30.850(b); this paragraph would  exempt from the                                                               
State Procurement Code contracts for  a convener or a facilitator                                                               
related to the  Neg-Reg process.  He asked whether  there are any                                                               
other  paid employees  or contractors  who  should be  considered                                                               
exempt from the procurement code.                                                                                               
                                                                                                                                
MR.  TILLERY,  drawing  on  his   experience,  relayed  that  the                                                               
facilitator  and the  facilitator's  staff were  the only  people                                                               
used.   He mentioned  that at  some point,  "an expert"  might be                                                               
called  upon  to  assist,  but that  expert  would  typically  be                                                               
someone already  on the  committee.  Mr.  Tillery said  he didn't                                                               
believe it  would be much  of an issue  as long as  the committee                                                               
was well chosen.                                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out that  there was  a similar                                                               
conforming  amendment  to the  State  Personnel  Act.   He  asked                                                               
whether the exemption from the  State Personnel Act would need to                                                               
extend to anyone other than conveners or facilitators.                                                                          
                                                                                                                                
MR. TILLERY said that based  on his experience, he couldn't think                                                               
of anyone else.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG noted  that Section 1 of  HB 34 contains                                                               
legislative intent language.   He noted that normally  he isn't a                                                               
fan of legislative intent language  and that, furthermore, simply                                                               
repealing  a  sunset  clause,  as  HB 34  does,  is  obvious  and                                                               
wouldn't require  that language.   He asked  if there is  a legal                                                               
reason why Section 1 is necessary.                                                                                              
                                                                                                                                
MR.  TILLERY  said he  wasn't  sure  why the  legislative  intent                                                               
language  was included.   He  remarked that  normally, it  is not                                                               
necessary,  and agreed  with  Representative  Gruenberg that  the                                                               
intent of  HB 34 is fairly  clear.  However, he  said he recalled                                                               
case  law  supporting the  need  to  be specific  when  repealing                                                               
sunsets, and offered to get back  to the committee on that issue.                                                               
Mr. Tillery  said he saw no  harm in leaving the  intent language                                                               
in HB 34.                                                                                                                       
                                                                                                                                
MS. COTTING  recalled that  in her  conversation with  the bill's                                                               
drafter, she'd requested that the repeal  of Sections 6, 7, and 9                                                               
of [SCS CSHB 264(STA)] be made very clear.                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG opined  that  the intent  of  HB 34  is                                                               
crystal  clear,  [especially]   given  the  legislative  history.                                                               
Therefore,  he  said  he  didn't  see the  need  for  the  intent                                                               
language.                                                                                                                       
                                                                                                                                
TAPE 03-23, SIDE B                                                                                                            
Number 2382                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM  expressed  a  preference  for  leaving  the                                                               
intent language in.                                                                                                             
                                                                                                                                
REPRESENTATIVE GARA  said that the policy  behind the legislation                                                               
seems  fine.   However, he  said he  has concern  with forwarding                                                               
legislation for  which there hasn't  been much discussion  of its                                                               
real world  application, adding that  it seems that  [the Neg-Reg                                                               
process]   is  used   frequently   by   the  resource   agencies.                                                               
Therefore, he  expressed the desire  to hear more  testimony with                                                               
regard  to how  the [original]  legislation has  worked over  the                                                               
last  four  years.   He  noted  that  his discomfort  is  further                                                               
compounded because this is the  only committee of referral for HB
34.                                                                                                                             
                                                                                                                                
REPRESENTATIVE  GARA also  remarked that  the fiscal  notes don't                                                               
appear to  be accurate because  it seems that  HB 34 will  cost a                                                               
certain  amount  of  money.   The  legislation  provides  that  a                                                               
facilitator  may be  used and,  in fact,  facilitators are  used.                                                               
The one facilitator about which  the committee heard is a private                                                               
facilitator whose services cost  money.  Representative Gara said                                                               
he would prefer  to see an accurate fiscal  note before reporting                                                               
HB 34 from committee.                                                                                                           
                                                                                                                                
REPRESENTATIVE SAMUELS  relayed that he was  comfortable with [HB
34].  With regard to the  fiscal notes, he surmised that if funds                                                               
for facilitators  are already incorporated  into the  budget, the                                                               
zero  fiscal note  is correct  because [the  Neg-Reg process]  is                                                               
already being done now; thus,  there would be no additional costs                                                               
for continuing to  do it, but there would be  positive revenue if                                                               
it  was  discontinued.    Representative  Samuels  said  that  if                                                               
everyone is  at the  [negotiating] table  [at the  beginning], it                                                               
would save money  in lawsuits.  He concluded by  saying, "I'm all                                                               
for it."                                                                                                                        
                                                                                                                                
REPRESENTATIVE    ANDERSON   echoed    Representative   Samuels's                                                               
comments.     He   remarked  that   [the  original   legislation]                                                               
experienced bipartisan  support.   With regard  to Representative                                                               
Gara's    questions,    Representative   Anderson    asked    why                                                               
Representative  Gara  didn't  contact  those  agencies  involved.                                                               
Representative    Anderson    pondered    how    many    meetings                                                               
Representative  Gara would  want  to have  to  get his  questions                                                               
answered.                                                                                                                       
                                                                                                                                
Number 2207                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  pointed out that legislation  is supposed to                                                               
receive public hearings,  not hearings behind closed  doors.  The                                                               
public  is  supposed  to  understand  and  hear  the  merits  and                                                               
demerits  of legislation.   Therefore,  he said  he would  rather                                                               
have a  public hearing versus  a private hearing because  that is                                                               
part of  the public process.   Representative Gara  remarked that                                                               
when a representative  receives legislation, it is  fair for that                                                               
representative  to  assume that  there  will  be adequate  public                                                               
comment.   Representative  Gara  said that  he  didn't feel  that                                                               
there was adequate  public comment [for HB 34].   He said that he                                                               
would  be more  comfortable if  HB  34 had  another committee  of                                                               
referral.  He  noted that it's unique for  legislation to receive                                                               
only one committee of referral.   He indicated that he is willing                                                               
to ask for additional public  testimony whenever he believes it's                                                               
necessary.                                                                                                                      
                                                                                                                                
CHAIR McGUIRE  noted that she does  her best to ensure  that this                                                               
committee  has   full  and  adequate   public  hearings   on  all                                                               
legislation.  She said that she  could line up folks from various                                                               
groups  that have  benefited  from [the  Neg-Reg  process].   She                                                               
highlighted that  the most  important thing about  HB 34  is that                                                               
it's  optional.    Furthermore,  nothing  in  HB  34  negates  an                                                               
agency's responsibility  in terms  of oversight.   An  agency can                                                               
decide to  use or  not use this  process and if  it is  used, the                                                               
agency can  disregard a recommendation  that the agency  deems to                                                               
be poor  or improper.   Therefore, she  said she  believes checks                                                               
and  balances are  in place.   She  said she  disagrees with  the                                                               
notion that there hasn't been an adequate public process.                                                                       
                                                                                                                                
REPRESENTATIVE  SAMUELS opined  that  the  [the Neg-Reg  process]                                                               
enhances the public process.                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLM  pointed  out   that  the  APA  retains  its                                                               
oversight,  and noted  that  HB 34  merely  addresses the  sunset                                                               
provisions, not the merits, of  the [original legislation], which                                                               
received a full public hearing at the time of its passage.                                                                      
                                                                                                                                
REPRESENTATIVE  GARA  said  that   the  public  process  in  this                                                               
committee was  fine.  He  clarified that  he wanted to  know more                                                               
about  how HB  34 has  worked in  practice, because  the decision                                                               
today is  whether to reauthorize  legislation that has  been used                                                               
in the past.   Therefore, people will infer  from the committee's                                                               
actions [in passage of HB  34] that this reauthorization occurred                                                               
due  to the  [committee's] belief  that the  original legislation                                                               
worked well.   Hearing one  example of how [the  Neg-Reg process]                                                               
worked  doesn't  provide  the  committee  an  adequate  basis  to                                                               
determine  how well  the process  has worked  over the  past four                                                               
years, he remarked.  Therefore, if,  as a legislator, he is being                                                               
asked  to forward  legislation  on the  supposition  that it  has                                                               
worked well in the past, he  expressed the need to know that such                                                               
is true.                                                                                                                        
                                                                                                                                
Number 2157                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  said he didn't  believe he has  heard enough                                                               
information  to know  that and,  furthermore, the  next stop  for                                                               
this legislation is  the House floor.  He noted  that he would be                                                               
more comfortable  if HB 34 were  to have a referral  to the House                                                               
Resources Standing Committee.  He  also recalled instances on the                                                               
House  floor  of the  question  being  asked regarding  how  well                                                               
certain legislation works; the response  has been that that work,                                                               
gathering that information, should've  been done in the committee                                                               
to which the legislation was referred.                                                                                          
                                                                                                                                
CHAIR McGUIRE posited  that the sponsor of HB 34  will be able to                                                               
provide  another  practical  life  example [of  how  the  Neg-Reg                                                               
process]  worked.   With regard  to Representative  Gara's desire                                                               
for there  to be a  House Resources Standing  Committee referral,                                                               
she said she  presumed that this is connected to  the cruise ship                                                               
example.   However, she  highlighted the  fact that  [the Neg-Reg                                                               
process] can be  used as an option for  any regulations involving                                                               
any area of law.   Therefore, she said that it  makes no sense to                                                               
her  why a  referral to  the House  Resources Standing  Committee                                                               
would be the preference over [any other committee].                                                                             
                                                                                                                                
REPRESENTATIVE   ANDERSON   said   that  he   had   misunderstood                                                               
Representative  Gara  to  be   questioning  the  public  process.                                                               
Representative Anderson  said that he didn't  want legislation to                                                               
pass from committee when [a  member] doesn't feel the legislation                                                               
has received due public process.                                                                                                
                                                                                                                                
REPRESENTATIVE  GARA,  in  response  to  the  comments  by  Chair                                                               
McGuire, explained  that he'd  mentioned the  need for  the House                                                               
Resources Standing  Committee referral  because of  his knowledge                                                               
that  the  Department  of Natural  Resources  (DNR),  the  Alaska                                                               
Department of Fish & Game  (ADF&G), and the DEC issue regulations                                                               
that might use the  law which HB 34 pertains to.   With regard to                                                               
the chair's comment  that perhaps HB 34 should  have referrals to                                                               
other  committees, he  said that  maybe it  should and  that that                                                               
wouldn't  be a  reason  not to  send it  to  the House  Resources                                                               
Standing Committee.   He clarified that his desire is  to have HB
34 receive a  referral to a committee that  has jurisdiction over                                                               
agencies that use the legislation.                                                                                              
                                                                                                                                
CHAIR McGUIRE  said she believes  HB 34  should have come  to the                                                               
House Judiciary Standing  Committee.  She announced  that [HB 34]                                                               
would pass out of committee.                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  remarked that  since HB 34  isn't going                                                               
to another  committee he  wanted to return  to his  earlier issue                                                               
with the intent language.  Noting  that he doesn't have a problem                                                               
with this  particular intent  language, he  said he  is concerned                                                               
about  including  intent  language when  the  legislation  merely                                                               
repeals a sunset clause.   Representative Gruenberg stressed that                                                               
as  a policy  matter,  he didn't  want  to see  a  lot of  intent                                                               
language clutter up the statutes.   Representative Gruenberg said                                                               
that   he   wouldn't  offer   an   amendment   in  committee   if                                                               
Representative  Holm   and  Ms.  Cotting  would   work  with  him                                                               
informally  and discuss  this with  the drafter.   If  it appears                                                               
that  the   intent  legislation   isn't  necessary,   he  desired                                                               
Representative  Holm's commitment  to work  with him  on a  floor                                                               
amendment to delete it.                                                                                                         
                                                                                                                                
REPRESENTATIVE HOLM said that would  be fine.  He reiterated that                                                               
HB 34 merely addresses sunset provisions.                                                                                       
                                                                                                                                
Number 1742                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to  report HB  34 out  of committee                                                               
with individual recommendations and  the accompanying zero fiscal                                                               
notes.                                                                                                                          
                                                                                                                                
REPRESENTATIVE GARA objected.                                                                                                   
                                                                                                                                
Number 1731                                                                                                                     
                                                                                                                                
A  roll   call  vote  was  taken.     Representatives  Gruenberg,                                                               
Anderson,  Ogg, Holm,  Samuels,  and McGuire  voted  in favor  of                                                               
reporting  HB  34  from committee.    Representative  Gara  voted                                                               
against  it.   Therefore,  HB  34  was  reported from  the  House                                                               
Judiciary Standing Committee by a vote of 6-1.                                                                                  

Document Name Date/Time Subjects