Legislature(2003 - 2004)

03/03/2004 01:58 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 424 - REGULATION REVIEW                                                                                                    
Number 2108                                                                                                                     
CHAIR McGUIRE  announced that the  final 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."                                                                           
Number 2068                                                                                                                     
BARBARA COTTING,  Staff to Representative Jim  Holm, Alaska State                                                               
Legislature,  informed  the committee  that  Ms.  Behr, from  the                                                               
Department  of  Law,  helped  craft  Version  23-LS0732\S,  Cook,                                                               
3/2/04, which is in members' packets.                                                                                           
Number 2061                                                                                                                     
DEBORAH   BEHR,  Assistant   Attorney   General,  Legislation   &                                                               
Regulations  Section,  Department  of  Law  (DOL),  informed  the                                                               
committee  that she  has  been the  regulations  attorney for  13                                                               
years.   She explained  that she was  asked to  provide technical                                                               
assistance in  drafting legislation establishing a  framework for                                                               
legislative  branch oversight  of  executive branch  regulations.                                                               
It is intended  that this aforementioned oversight is  to be done                                                               
in  a  constitutional  manner that  meets  separation  of  powers                                                               
constraints because  the legislature  has the ability,  under the                                                               
constitution,   to   review   regulations.      Therefore,   this                                                               
legislation  establishes   the  checks   and  balances   of  such                                                               
oversight.   She  further  explained that  another  goal she  was                                                               
given has been to minimize  the fiscal impact of the legislation,                                                               
and  this  has   led  to  prioritization  of   certain  types  of                                                               
regulation reviews in order to  maximize the dollars and the cost                                                               
of the attorney time.                                                                                                           
MS. BEHR provided the following  sectional analysis of Version S.                                                               
She  explained  that Section  1,  subsection  (a) recognizes  the                                                               
already-existing statutory  authority of the  Legislative Affairs                                                               
Agency to  review any regulation.   She highlighted  that Section                                                               
1, subsection  (a), also specifies  that the review will  be done                                                               
by  an attorney  in order  to  provide clarity.   Therefore,  one                                                               
would want  to ensure  that attorneys  are reviewing  things that                                                               
make the  most cost-effective  sense to  review, rather  than the                                                               
policy  decisions that  are appropriate  for  the legislators  to                                                               
review.   With the  aforementioned in mind,  a priority  order of                                                               
reviews  was  established in  Section  1,  subsection (b).    She                                                               
pointed out that Section 1,  subsection (b)(1), avoids the review                                                               
of routine  regulations.  Section  1, subsection  (b)(2), focuses                                                               
on  regulations  the  legislature has  decided  implicates  major                                                               
policy  development.    She  explained that  an  example  of  the                                                               
aforementioned  would be  that a  standing  committee, the  Joint                                                               
Committee  on Administrative  Regulation  Review, or  Legislative                                                               
Council  would   indicate  to  Legislative  Legal   and  Research                                                               
Services  that  specific  regulations  would  be  appropriate  to                                                               
review with regard to major policy development.                                                                                 
Number 1937                                                                                                                     
MS.  BEHR continued  with Section  1, subsection  (c), explaining                                                               
that state  agencies will send  electronic copies  of regulations                                                               
to those entities specified in  Section 1, subsection (c)(1)-(4).                                                               
She  explained that  if HB  424 passes,  she will  talk with  the                                                               
director  of  the Legislative  Affairs  [Agency]  with regard  to                                                               
setting  up designated  mail boxes  for certain  regulations, and                                                               
the  state agencies  will then  be  informed of  the address  for                                                               
particular  regulations.     Ms.   Behr  turned  to   Section  1,                                                               
subsection (d), and explained it  with the following example.  If                                                               
the legislature prefers to have  a special session and have staff                                                               
working on  legislation, the legislature  can do  so.  In  such a                                                               
situation, legal counsel would say  that the regulation review is                                                               
of a lower priority  for the time period.  The  phrase on page 2,                                                               
line 11, allows the  priorities to be set.  On  page 2, lines 14-                                                               
18, is  [a provision] that  avoids attorneys getting  involved in                                                               
policy reviews.   Also, the list doesn't include  the revising of                                                               
MS. BEHR  moved on to Section  1, subsection (e).   She explained                                                               
that the sponsor and his staff  indicated the need for a dialogue                                                               
in doing  regulations and  only issuing  something in  writing if                                                               
there is a  disagreement on the legal standards to  be used or if                                                               
the  regulation doesn't  meet the  standards in  the legislation.                                                               
Therefore,  if Legislative  Legal and  Research Services  doesn't                                                               
believe there is a problem  with the regulation, then there won't                                                               
be a  written document.   Furthermore,  if Legislative  Legal and                                                               
Research Services does raise a  legal concern and the [Department                                                               
of Law]  agrees that  there is  a legal  concern and  changes the                                                               
regulation  in  question,  then there  is  no  written  document.                                                               
However, if  there is a  disagreement [between  Legislative Legal                                                               
and Research Services  and the Department of Law],  there will be                                                               
a written  document that is  sent to  the Department of  Law, the                                                               
impacted  state agency,  the  Joint  Committee on  Administrative                                                               
Regulation Review, the  President of the Senate,  and the Speaker                                                               
of the House.                                                                                                                   
Number 1805                                                                                                                     
MS.  BEHR  continued  with  Section   1,  subsection  (f),  which                                                               
specifies that if the assigned  attorney finds that the [proposed                                                               
regulation] may be inconsistent  with legislative intent and thus                                                               
it would  be appropriate to  have additional  oversight hearings,                                                               
the attorney  will notify the  Joint Committee  on Administrative                                                               
Regulation Review, the  President of the Senate,  and the Speaker                                                               
of the  House.  She  stated that the legislative  oversight could                                                               
result in  oversight hearings and  a more detailed review  by the                                                               
staff  of  the  Joint   Committee  on  Administrative  Regulation                                                               
Review.    Section 1,  subsection  (g),  places  a limit  on  the                                                               
Legislative  Affairs Agency  with regard  to the  release of  any                                                               
information.  The aforementioned  addresses the fact that because                                                               
Legislative  Legal   and  Research   Services  doesn't   have  an                                                               
attorney-client relationship  with executive branch  staff, there                                                               
is an  argument that  anything drafted  by Legislative  Legal and                                                               
Research  Services   would  come  out  into   the  public  forum.                                                               
However, since  the intent  is to have  an informal  dialogue and                                                               
correct  errors before  regulations  are finalized,  the goal  of                                                               
Section  1,  subsection  (g), is  that  information  wouldn't  be                                                               
released by Legislative [Legal and Research Services].                                                                          
MS. BEHR turned to Section  1, subsection (h), which was prompted                                                               
by concerns  regarding whether the  process has to be  stopped or                                                               
suspended while  waiting for the  Legislative Legal  and Research                                                               
Services' review.   This  subsection clarifies  that there  is no                                                               
suspension of the  regulation process.  Ms.  Behr highlighted the                                                               
second  sentence  in  Section  1,   subsection  (h),  which  says                                                               
"Suggestions for  changes to  a proposed  regulation made  by the                                                               
Legislative Affairs  Agency are not  binding on a  state agency."                                                               
The   aforementioned  language   recognizes  that   there  is   a                                                               
separation of  powers issue and  if [the legislature]  decides to                                                               
go  a different  way, the  legislature always  has the  option of                                                               
passing a  statute to say  that the regulation  is inappropriate.                                                               
Ultimately, the legislature has  power over any state regulation,                                                               
she said.   Section 1,  subsection (i), addresses a  situation in                                                               
which the  Legislative Legal and Research  Services can't conduct                                                               
a  legal review  due to  staffing  issues or  because of  special                                                               
session  priorities.   In such  cases, no  one can  challenge the                                                               
failure of the agency to conduct a legal review.                                                                                
MS.  BEHR pointed  out that  Section 1,  subsection (j),  doesn't                                                               
include  the Board  of Fisheries  and the  Board of  Game in  the                                                               
expedited priority review because of  the unique processes of the                                                               
two.   She highlighted that  the public  process of the  Board of                                                               
Fisheries and  the Board of Game  is one in which  any person can                                                               
place a  proposal before the  board.  Section 1,  subsection (k),                                                               
is merely a definitions section.                                                                                                
MS.  BEHR moved  on  to  Section 2,  which  addresses the  Public                                                               
Records Act.   She explained  that Section 2  basically specifies                                                               
that if  there is written  notification or  e-mail correspondence                                                               
between the Department of Law  and Legislative Legal and Research                                                               
Services regarding  the process, the  public can't obtain  a copy                                                               
of  that notification  through  a public  records  request.   She                                                               
likened  this  to  the  protections   the  legislature  has  with                                                               
Legislative Council.   She reiterated that if  a regulation still                                                               
has problems, legislation can still be  passed to change it.  She                                                               
then turned  to Section 3,  which pertains to  the Administrative                                                               
Procedure Act (APA).   Section 3 requires state  agencies to send                                                               
the  electronic documents  indicated.   She highlighted  that the                                                               
important  part of  this section  is that  the review  will begin                                                               
concurrently with the public comment  period.  The aforementioned                                                               
was done as a cost-containment measure.   Ms. Behr noted that the                                                               
fiscal note  for this legislation has  decreased considerably due                                                               
to the changes encompassed in [Version S].                                                                                      
Number 1563                                                                                                                     
REPRESENTATIVE HOLM, speaking as  the sponsor, explained that his                                                               
goal is to  reestablish oversight of the rulemaking  process.  He                                                               
highlighted  that  [Version S]  specifies  that  it is  the  last                                                               
iteration  [of a  regulation]  that  will go  to  the public  for                                                               
comment.   He  characterized the  aforementioned as  a good  step                                                               
toward minimizing  complaints about regulations.   Representative                                                               
Holm offered his  belief that it's important  for the legislature                                                               
to continue  to maintain its  legislative oversight of  laws that                                                               
are drafted, including those that are promulgated by regulation.                                                                
REPRESENTATIVE  HOLM then  asked  why the  review response  isn't                                                               
going to the sponsor of the legislation.                                                                                        
MS.  BEHR  recalled that  one  of  the  work drafts  did  include                                                               
notification of the sponsor of the legislation.                                                                                 
MS. COTTING  informed the committee  that Representative  Ogg had                                                               
suggested that consultation with  the legislation's sponsor isn't                                                               
permissible.   She noted that Tamara  Cook, Director, Legislative                                                               
Legal  and  Research Services,  agreed  and  suggested that  that                                                               
reference be removed.                                                                                                           
REPRESENTATIVE  OGG   explained  that  when  the   courts  review                                                               
regulations  or statute,  the written  record is  reviewed.   The                                                               
written record reports when the  intent is narrowed.  However, if                                                               
the sponsor is  talked to after the fact, the  sponsor is looking                                                               
at  it with  different eyes,  and  so the  subjectiveness of  the                                                               
review process is lost.                                                                                                         
[Chair McGuire turned the gavel over to Representative Samuels.]                                                                
MS.  COTTING  relayed  that  Ms.  Cook  informed  her  that  once                                                               
legislation  is  submitted  to  Legislative  Legal  and  Research                                                               
Services, it's no  longer the property of the  sponsor.  However,                                                               
Ms. Cotting  pointed out  that nothing in  this CS  prohibits the                                                               
sponsor from having input in the process along the way.                                                                         
Number 1353                                                                                                                     
REPRESENTATIVE  HOLM  moved  to   adopt  the  proposed  committee                                                               
substitute (CS)  for HB 424,  Version 23-LS0732\S,  Cook, 3/2/04,                                                               
as  the work  draft.   There being  no objection,  Version S  was                                                               
before the committee.                                                                                                           
REPRESENTATIVE GRUENBERG directed attention to page 2, lines 23-                                                                
26, and page 2, lines 28-29.   He noted that in the interim, when                                                               
there is an  election year, things are in total  disarray and the                                                               
Speaker of the  House and the President of the  Senate are likely                                                               
to change.   He mentioned that AS  24.20.065 requires legislative                                                               
legal  counsel to  annually  examine administrative  regulations.                                                               
Therefore, there is already a  process.  Representative Gruenberg                                                               
recalled  from   his  past  tenure  with   the  legislature  that                                                               
Legislative  Legal and  Research  Services  annually published  a                                                               
book  that   was  provided  to   the  House   Judiciary  Standing                                                               
Committee.   Every  year the  House Judiciary  Standing Committee                                                               
would have a  hearing and review the cases  [dealing with statute                                                               
and  regulations].    Sometimes, he  relayed,  legislation  would                                                               
result from that  review.  Representative Gruenberg  asked if Ms.                                                               
Behr would have a problem with that provision into HB 424.                                                                      
MS. BEHR noted  that although she hasn't spoken  with the sponsor                                                               
on  this matter,  it is  her impression  that AS  24.20.065 comes                                                               
later  in  the  process,  after the  courts  have  reviewed  [the                                                               
statute or regulation].  This  [legislation], however, proposes a                                                               
review much earlier in the process.   She noted her hope that the                                                               
legal  opinions  from  Legislative Legal  and  Research  Services                                                               
would  come out  during the  public  comment period  so that  the                                                               
regulations could be improved.                                                                                                  
REPRESENTATIVE GRUENBERG  inquired as  to how this  process would                                                               
unfold in the interim of an election year.                                                                                      
MS. BEHR said  that sending the information to  the Department of                                                               
Law is absolutely  necessary because it provides  legal advice to                                                               
the state  agency, which  needs the information  in order  to fix                                                               
the  regulation.   She pointed  out that  the Joint  Committee on                                                               
Administrative  Regulation Review  is a  joint committee  of both                                                               
bodies  and is  staffed during  the interim.   Additionally,  Ms.                                                               
Behr remarked,  the President  of the Senate  and the  Speaker of                                                               
the  House are  probably the  two  most active  positions in  the                                                               
legislature  during  the  interim.    With  regard  to  including                                                               
Legislative Council, Ms.  Behr said that she didn't  have a legal                                                               
problem with that but would have to discuss it with the sponsor.                                                                
REPRESENTATIVE  GRUENBERG turned  attention to  page 2,  line 18,                                                               
and pointed out  that often a regulation  is promulgated pursuant                                                               
to  several  statutes.   Therefore,  he  suggested  changing  the                                                               
language to refer to "the applicable statutes".                                                                                 
MS. BEHR remarked that the committee  might want to talk with its                                                               
legislative  legal  counsel, which  took  care  in reviewing  the                                                               
current language to ensure that  the standards [the Department of                                                               
Law uses] match  the standards specified.   Furthermore, there is                                                               
already statute  that specifies that  singular equals  plural and                                                               
plural equals singular.                                                                                                         
Number 1030                                                                                                                     
REPRESENTATIVE  GRUENBERG   moved  Conceptual  Amendment   1,  as                                                               
     Page 2, line 18,                                                                                                           
          Delete "statute"                                                                                                      
          Insert "applicable statutes"                                                                                          
REPRESENTATIVE  GRUENBERG noted  that he  is offering  Conceptual                                                               
Amendment 1 subject  to review of Legislative  Legal and Research                                                               
REPRESENTATIVE OGG objected.                                                                                                    
REPRESENTATIVE HOLM  said that  he had  no opinion  on Conceptual                                                               
Amendment  1,   but  mentioned  that  per   Ms.  Behr's  comments                                                               
Conceptual Amendment 1 seems redundant.                                                                                         
REPRESENTATIVE GRUENBERG indicated that  the caveat regarding the                                                               
Legislative  Legal and  Research  Services  review of  Conceptual                                                               
Amendment 1 includes, "if it's in  order, they can change it, and                                                               
if it's redundant, they can drop it out."                                                                                       
REPRESENTATIVE OGG withdrew his objection.                                                                                      
REPRESENTATIVE  SAMUELS  asked  whether there  were  any  further                                                               
objections  to  Conceptual  Amendment   1.    There  being  none,                                                               
Conceptual Amendment 1 was adopted.                                                                                             
Number 0984                                                                                                                     
REPRESENTATIVE  GRUENBERG  turned  to  Amendment  2,  which  read                                                               
[original punctuation provided]:                                                                                                
     Page 1, line 3: After "Act;" insert the following:                                                                         
        repealing obsolete provisions of law concerning                                                                         
          legislative annulment of regulations and review;                                                                      
         Page 3, Line 19: Insert new bill section 5 and                                                                         
     renumber sections accordingly:                                                                                             
          *Sec. 5. AS 44.62.320 is repealed.                                                                                  
REPRESENTATIVE   GRUENBERG  informed   the   committee  that   AS                                                               
44.62.320(a)  is unconstitutional  per  the A.L.I.V.E.  Voluntary                                                             
case.  Representative Gruenberg  explained that originally he was                                                               
going to  repeal AS  44.62.320(a).   However, upon  learning from                                                               
Ms. Cotting  that AS 44.62.320(b)  isn't observed, he  decided to                                                               
repeal that subsection as well.                                                                                                 
MS.  COTTING   said  she'd  discussed   this  repeal   with  Dave                                                               
Stancliff, Staff to Representative  Gene Therriault, Chair, Joint                                                               
Committee on  Administrative Regulation  Review, who'd  said that                                                               
repealing all of it would  be fine because it's unconstitutional.                                                               
She confirmed that AS 44.62.320(b) isn't observed.                                                                              
REPRESENTATIVE GRUENBERG  interjected that there is  a conforming                                                               
title amendment.                                                                                                                
MS. BEHR said  that she has no legal objection  to Amendment 2 as                                                               
it clarifies the  statutes.  However, she  remarked, whether this                                                               
matter  should  be dealt  with  in  this  legislation or  in  the                                                               
revisor's bill is something upon which she couldn't comment.                                                                    
Number 0850                                                                                                                     
REPRESENTATIVE SAMUELS, although no  formal motion was made, upon                                                               
determining  that  there  were  no  objections  to  Amendment  2,                                                               
announced that Amendment 2 was adopted.                                                                                         
Number 0839                                                                                                                     
REPRESENTATIVE GRUENBERG moved  to report the proposed  CS for HB
424,  Version  23-LS0732\S,  Cook,  3/2/04, as  amended,  out  of                                                               
committee [with  individual recommendations and  the accompanying                                                               
fiscal notes].                                                                                                                  
REPRESENTATIVE GARA asked about the fiscal notes.                                                                               
REPRESENTATIVE HOLM relayed  that one of the fiscal  notes is for                                                               
Number 0817                                                                                                                     
REPRESENTATIVE  GARA  expressed  the  need  to  ensure  that  the                                                               
Legislative  Affairs  Agency  has   the  power  to  perform  this                                                               
regulatory review.   However, he also wanted to  ensure that when                                                               
the workload of Legislative Legal  and Research Services is heavy                                                               
with  other priorities,  then reviewing  regulations wouldn't  be                                                               
[required].  Representative Gara  suggested that that fiscal note                                                               
could  be lowered  to  zero if,  on  page 2,  line  12, the  word                                                               
"shall" is changed to "may".   The current language requires that                                                               
at least one attorney be assigned to review regulations.                                                                        
REPRESENTATIVE SAMUELS pointed out that  on page 1, line 6-7, the                                                               
legislation  specifies,  "The   Legislative  Affairs  Agency  may                                                               
review  ...."   Therefore, there  is no  [mandate] to  review the                                                               
regulations and, thus,  if there is no review, there  would be no                                                               
attorney time used.                                                                                                             
MS. COTTING  offered her belief  that with  Representative Gara's                                                               
proposed language change, there  would be an indeterminate fiscal                                                               
note.   She said that an  indeterminate fiscal note is  even more                                                               
difficult for the House Finance Committee to address.                                                                           
Number 0711                                                                                                                     
KARLA  SCHOFIELD,  Deputy  Director,  Legislative  Administrative                                                               
Services,  Legislative  Affairs   Agency,  explained  that  after                                                               
reviewing  the legislation  with Legislative  Legal and  Research                                                               
Services and  the executive director  of the  Legislative Affairs                                                               
Agency,  it  was determined  that  there  isn't enough  staff  to                                                               
review  more than  perhaps one  regulation a  year.   Because the                                                               
legislature could  want a  review of more  than one  regulation a                                                               
year, the  fiscal note reflects the  cost of the addition  of one                                                               
attorney who could be assigned regulations review.                                                                              
REPRESENTATIVE GARA maintained his belief  that use of "shall" on                                                               
page 2, line  12, requires a certain amount  of regulation review                                                               
when  perhaps   the  agency  should   be  given   discretion  [in                                                               
reflection of its workload].                                                                                                    
REPRESENTATIVE  SAMUELS  expressed  concern that  if  Legislative                                                               
Council says there  is the need to re-prioritize,  then it should                                                               
be allowed.                                                                                                                     
REPRESENTATIVE  OGG  opined  that  it  is  only  once  the  "may"                                                               
language  on page  1, line  7,  is triggered  that the  mandatory                                                               
language comes into  play.  Furthermore, on page  2, lines 11-13,                                                               
the caveat  of "Within available  staff resources  and priorities                                                               
set by  the legislative  council" comes  previous to  the "shall"                                                               
language.  Therefore, Representative Ogg  said that he didn't see                                                               
the need for Representative Gara's suggested change.                                                                            
REPRESENTATIVE HOLM indicated agreement with Representative Ogg.                                                                
REPRESENTATIVE GARA withdrew his suggested change.                                                                              
Number 0539                                                                                                                     
REPRESENTATIVE OGG  moved to report  the proposed CS for  HB 424,                                                               
Version 23-LS0732\S,  Cook, 3/2/04, as amended,  out of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
[notes].  There being no objection, CSHB 424(JUD) was reported                                                                  
from the House Judiciary Standing Committee.                                                                                    

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