Legislature(2003 - 2004)

02/27/2004 01:20 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 424 - REGULATION REVIEW                                                                                                    
Number 0206                                                                                                                     
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE BILL  NO. 424,  "An Act relating  to review  of regulations                                                               
under  the  Administrative  Procedure   Act  by  the  Legislative                                                               
Affairs Agency; and providing for  an effective date."  [Members'                                                               
packets  contained a  proposed committee  substitute (CS)  for HB
424, Version 23-LS0732\I, Cook, 2/20/04]                                                                                        
CHAIR McGUIRE informed  the committee that a [new] CS  for HB 424                                                               
is forthcoming.                                                                                                                 
Number 0262                                                                                                                     
BARBARA COTTING,  Staff to Representative Jim  Holm, Alaska State                                                               
Legislature,  sponsor,   characterized  HB  424  as   a  work  in                                                               
progress.  However, the intention  is to place the concept before                                                               
the committee  today for  review.  She  relayed that  the sponsor                                                               
does not  want the  committee to consider  CSHB 424,  Version 23-                                                               
LS0732\I, Cook, 2/20/04, because the  sponsor hopes to have a new                                                               
CS and fiscal  note for the committee's  consideration early next                                                               
MS. COTTING predicted that the  committee would agree that common                                                               
complaints from  constituents are about regulations.   House Bill                                                               
424  is  one  piece  in   solving  the  regulations  puzzle,  she                                                               
explained, adding that the bill  authorizes a formal of review of                                                               
regulations  by Legislative  Legal  and Research  Services.   She                                                               
referred to  a document in  committee packets entitled  "Steps in                                                               
the Regulation Adoption Process,"  and explained that this review                                                               
would come  after the Department of  Law opens the file  [step 4]                                                               
but before  the agency publishes  and distributes  public notice,                                                               
additional notice  information, and regulations [step  5].  Under                                                               
the current  statute, only the attorney  general formally reviews                                                               
regulations.  She pointed out  that the attorney general's review                                                               
comes late in  the process, when public comment  has already been                                                               
closed,  and after  the review,  the regulations  are transmitted                                                               
for  the lieutenant  governor's office  and, at  this point,  the                                                               
regulations are  rarely changed.   Under HB 424,  the legislative                                                               
attorneys who actually draft the  legislation that authorizes the                                                               
regulations would  formally review those  regulations promulgated                                                               
from the legislation that the agency drafted.                                                                                   
MS. COTTING  relayed Representative Holm's sentiment  that HB 424                                                               
should have  a positive  effect on  Alaska's economy  because the                                                               
regulations will  reflect a more  cooperative effort  between the                                                               
administrative and legislative branches  of government.  The hope                                                               
is that  with this  process, a  more stable  business environment                                                               
will be  created, perhaps even  allowing the public to  trust the                                                               
government more than it does now.                                                                                               
Number 0503                                                                                                                     
DAVID  STANCLIFF,   Staff  to  Senator  Gene   Therriault,  Joint                                                               
Committee  on  Administrative  Regulation  Review,  Alaska  State                                                               
Legislature, informed  the committee that  one of his  tasks this                                                               
year is to make government work  better and find ways in which to                                                               
work  cooperatively with  the administration  towards that  goal.                                                               
He informed the  committee that from the 1960s to  the 1970s, the                                                               
number of bills  introduced peaked at about 1,700.   In the early                                                               
1990s, the number  of bills introduced decreased to  about 900 or                                                               
so  with approximately  300  bills becoming  law.   However,  the                                                               
situation  with regulations  is quite  unlike that  because there                                                               
are  some   40,000  regulations  now.     He  pointed   out  that                                                               
regulations have grown  on an exponential curve.   He highlighted                                                               
that   promulgating  regulations   creates  increases   in  costs                                                               
throughout  government.   Moreover, it's  problematic for  policy                                                               
makers to  find out the  costs associated with a  regulation that                                                               
is promulgated.   If one were  to take the growth  of regulations                                                               
to a point  20 years in the future, it  would make today's fiscal                                                               
problems look  tame, he predicted,  and said that at  some point,                                                               
regulation growth has so advanced  that the legislature's ability                                                               
to deal with it is severely encumbered.                                                                                         
MR. STANCLIFF  opined that the Alaska  State Constitution blesses                                                               
the executive  branch with a  great deal of power.   Furthermore,                                                               
the legislature  has delegated law-making power  to the executive                                                               
branch through  "rule writing."   There are  two types  of rules:                                                               
those  based on  legislation, and  those based  on policy.   "The                                                               
executive [branch]  is free because  the legislature  has granted                                                               
the authority  to actually draft laws  in the form of  rules," he                                                               
pointed out.                                                                                                                    
Number 0731                                                                                                                     
MR. STANCLIFF said that the  legislature and the executive branch                                                               
have another unique relationship in  that the executive branch is                                                               
very  involved  in  the  legislative  process  and  many  in  the                                                               
executive branch  have free access  to the legislative  branch of                                                               
government.    However, the  contrary  isn't  the case  when  one                                                               
reviews what the legislature is  able to do with regulations, Mr.                                                               
Stancliff noted,  adding that  at one time,  there was  a statute                                                               
that  provided   the  legislature  with  the   ability  to  annul                                                               
regulations, but  that statute was found  to be unconstitutional.                                                               
Furthermore,   two   ballot   measures  that   would've   allowed                                                               
legislative involvement [in the  regulations process] have failed                                                               
to pass.                                                                                                                        
MR.  STANCLIFF  pointed  out that  throughout  the  country,  the                                                               
history of administrative law is  such that two troublesome areas                                                               
are having to be addressed, and  one such area is being addressed                                                               
via this legislation.   Several states have  decided that perhaps                                                               
there should be  more of a partnership between  the executive and                                                               
legislative  branches   when  dealing  with  regulations.     For                                                               
example,  the  legislative legal  staff  in  Minnesota draft  the                                                               
regulations   with   the   executive  branch.      However,   the                                                               
aforementioned ability will not be  provided in Alaska unless the                                                               
constitution  is changed.   Alaska  has the  ability, though,  as                                                               
does Colorado, to peak over  the shoulder of the executive branch                                                               
and offer  an opinion when  it looks  as if what  the legislature                                                               
intended  isn't happening.   When  the aforementioned  nonbinding                                                               
review occurs, those  who write the regulations  realize there is                                                               
a higher bar and thus they write the regulations more carefully.                                                                
MR. STANCLIFF  said that  although he  didn't discuss  the Alaska                                                               
Public  Offices   Commission  regulations  that  are   now  being                                                               
reviewed   at  various   levels   within   the  legislature,   he                                                               
characterized it as  a timely issue in highlighting  the need for                                                               
[the  executive  and legislative  branches]  to  work in  a  more                                                               
cooperative role.  Although some  have suggested that legislative                                                               
staff  could [review  the regulations],  he  opined instead  that                                                               
Legislative  Legal and  Research Services  staff need  [to review                                                               
the regulations] in  order to obtain a quality  of review similar                                                               
to what  the attorney  general performs.   The  Legislative Legal                                                               
and  Research Services  staff are  intimately  familiar with  the                                                               
intent  and nuances  through every  committee  meeting and  every                                                               
vote, he posited, because these  folks are constantly in contact.                                                               
He added  that whenever the  drafters have a problem  with regard                                                               
to how a  proposed statute might dovetail with  existing law, the                                                               
[legislature] often invites them to  discuss it with the attorney                                                               
general in order  to determine how to  cooperatively draft better                                                               
MR.  STANCLIFF added,  therefore,  that  the [legislature]  would                                                               
like to  receive the same  deference in order to  minimize public                                                               
conflict  and mistakes,  and ensure  that  the regulations  which                                                               
pass through  the public comment  period look the same  when they                                                               
are  eventually  put  in  place.   Mr.  Stancliff  said  that  in                                                               
conversations with  the Department  of Law, he'd  discovered that                                                               
somewhere  around 25  percent of  the regulations  are sent  back                                                               
after going through  the public process, which  he interpreted to                                                               
mean  that  the  regulation  that  was  finally  adopted  doesn't                                                               
exactly  match  the regulation  on  which  the public  commented.                                                               
However, he clarified that he  isn't suggesting that all of those                                                               
were major  problems, because some are  technical and grammatical                                                               
corrections.  Still, there are  some that are troubling, which he                                                               
believes will be the case with  the APOC regulations.  "The goal,                                                               
here, is  to work out of  the 'Reg Review Committee,'  both sides                                                               
of  the legislature;  [the]  Department of  Law  is working  very                                                               
cooperatively with us right now on this issue," he said.                                                                        
Number 1081                                                                                                                     
MR. STANCLIFF  turned to the  issue of  cost.  He  suggested that                                                               
the cost for a poorly  written regulation is millions of dollars.                                                               
Unfortunately,   an  entity   impacted  by   [a  poorly   written                                                               
regulation]  cannot obtain  resolution  until the  administrative                                                               
process  is exhausted.   He  informed  the committee  that he  is                                                               
tracking cases  that have been open  for 20 years.   Therefore, a                                                               
small investment  by the legislature in  a cooperative regulatory                                                               
review  process  could result  in  huge  returns in  the  private                                                               
sector  and  reductions  through  efficiency  in  the  government                                                               
sector.  Furthermore,  he expressed hope that this  would be part                                                               
of a  package brought forth  to the public illustrating  that the                                                               
legislature wants government to work better.                                                                                    
CHAIR McGUIRE  mentioned that  as the former  chair of  the Joint                                                               
Committee  on  Administrative  Regulation Review,  she  struggled                                                               
with ways in which to address  the same problem Mr. Stancliff has                                                               
discussed.    From  the  hearings on  the  legislation  that  she                                                               
introduced,  she   recalled  that  [a  cooperative   approach  to                                                               
regulations] raises the  level in drafting.  The goal  is to have                                                               
legislators  think  more  thoroughly when  proposing  legislation                                                               
because frequently  [the legislature] has  failed to be  as clear                                                               
as  it can  when drafting.   Furthermore,  because of  the weight                                                               
given  to the  executive branch,  there are  few mechanisms  [for                                                               
correction]  that   can  be  used.     Moreover,  the  A.L.I.V.E.                                                             
Voluntary case made it clear  that presentment to the governor is                                                             
required.   Chair McGuire  relayed that  she likes  this proposal                                                               
better than a sunset approach.                                                                                                  
Number 1297                                                                                                                     
REPRESENTATIVE GRUENBERG requested the name  of the case or cases                                                               
that specified that the legislature  can't, via statute, change a                                                               
CHAIR McGUIRE specified that it's the A.L.I.V.E. Voluntary case.                                                              
REPRESENTATIVE  GARA expressed  concern  with  the approach  that                                                               
someone  can be  appointed  from Legislative  Legal and  Research                                                               
Services  to   relate  the  intent  of   legislation  during  the                                                               
regulation drafting  process.  He  said he knows what  his intent                                                               
is when  working on legislation  and, hopefully,  the legislature                                                               
has been  clear enough that  the courts can determine  the intent                                                               
with the legislation.                                                                                                           
MS.  COTTING  informed  the committee  that  the  forthcoming  CS                                                               
allows the  legislative attorney to  approach the sponsor  of the                                                               
legislation and discuss its intent.                                                                                             
MR.  STANCLIFF  acknowledged  that   it  could  be  difficult  to                                                               
interpret the intent of 60 people  who voted for a measure for 60                                                               
different reasons.   However, the Legislative  Legal and Research                                                               
Services  staff are  capable of  at least  sounding an  alarm, at                                                               
which  point the  leadership  in  the House  and  Senate will  be                                                               
notified to  ask if there  should be  review.  He  specified that                                                               
the Legislative  Legal and Research  Services staff  aren't being                                                               
asked to  make the  final absolute  judgment in  such situations.                                                               
Hopefully,  he  concluded,  the  forthcoming  CS  will  meet  the                                                               
concerns [expressed by Representative Gara].                                                                                    
REPRESENTATIVE SAMUELS said he tended to agree.                                                                                 
CHAIR McGUIRE indicated that HB 424 would be held over.                                                                         

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