Legislature(1995 - 1996)
02/01/1996 09:10 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JOINT RESOLUTION NO. 1 Proposing an amendment to the Constitution of the State of Alaska relating to repeal of regulations by the legislature. Co-chairman Halford directed that HJR 1 be brought on for consideration. TED POPELY, aide to House Speaker Gail Phillips, came before committee. He referenced the sponsor statement (copy on file in the original Senate Finance Committee file for HJR 1) and noted that, if placed on the ballot, the resolution would provide voters an opportunity to amend the state constitution to allow for legislative repeal of administrative regulations, by joint resolution. Repeal would apply to regulations that ignore or extend beyond the scope of enabling legislation. Mr. Popely acknowledged that the measure had been before the voters on three previous occasions and had failed. However, a significantly growing number of regulations which do not fulfill the purpose and intent of legislation make it timely once more. JIM COLLARD, President, Juneau Chamber of Commerce, next came before committee and voiced support for the resolution. He said that regulatory compliance is often one of the biggest costs of doing business. While many regulations accurately implement both the letter and intent of law, many go far beyond or appear to ignore intent. Regulations have the force of law for businesses, and they are often promulgated without public input. When agencies craft regulations that depart from legislative instructions, the agency becomes the lawmaker without having to answer to voters. HJR 1 provides an effective tool by which to ensure adherence to legislative intent and return the making of law to the legislature. PAM LaBOLLE, President, Alaska State Chamber of Commerce, next spoke on behalf of the chamber's 700 member-businesses which provide jobs to 70,000 employees. She said that mission of the chamber is to create a climate conducive to a strong private-sector economy. Mrs. LaBolle voiced support for HJR 1, advising that reform of the present regulatory system is second in priority to need to close the fiscal gap. Referencing a chamber resolution in support of the effort, she noted that the resolution asks the legislature and administration to "provide for an effective oversight mechanism to assure that regulations are producing effective results that follow legislative intent." She cited complaints regarding regulations that ignore or miss the point of legislation. Presently, the only recourse is passage of "corrective legislation." Since the governor can veto that legislation, the current system allows the executive branch to usurp the power of the legislature. Throughout the legislative process, the public has opportunity to provide input. The regulatory process is not so open or receptive, and regulations are sometimes adopted in spite of public sentiment. Co-chairman Frank asked if the chamber would fund and undertake a campaign to inform the public of the benefits of HJR 1. He noted that because of lack of explanation and understanding, prior votes on the issue were viewed as "a power grab by the legislature." Mrs. LaBolle said that the chamber is committed to utilization of its resources and network of local chambers to educate and inform the public. Both Co-chairman Frank and Senator Randy Phillips stressed need for the educational effort to extend beyond chambers and business groups to the public at large. Further discussion of need for adequate funding of a public awareness effort followed. Co-chairman Frank suggested that a financial commitment from the business community similar to the effort to close the fiscal gap should be devoted to changing the regulatory process. JIM BALDWIN, Assistant Attorney General, Governmental Affairs Section, Dept. of Law, advised that HJR 1 would dramatically changed the legislative process. He queried members concerning specific regulations giving rise to public complaint. He suggested that, as an institution, the legislature should be concerned about "this sort of power." As an example, he cited fish and game regulations and noted that the board of fish and game was created in territorial days and continued in statehood to place regulatory power in the hands of experts. He questioned whether fishing interests should come directly to the legislature to undo regulations adopted by the board. Mr. Baldwin further cited an earlier attempt by the legislature to annul regulations by statute (AS 44.62.320) and noted that the effort was ruled unconstitutional (State v. A.L.I.V.E Voluntary). He stressed that regulations involve more than just businesses. Senator Randy Phillips noted that the supreme court ruling was three to two. The question of unconstitutionality was thus not unanimous. Senator Phillips directed attention to page 1, lines 6 and 7, and referenced language calling for repeal via joint resolution. He then noted language at AS 44.62.320 requiring repeal by concurrent resolution and questioned which form of resolution should be utilized. Co-chairman Halford said that provisions in HJR 1 would supercede the statute. He informed members that the effective difference is "to elevate the kind of resolution to one requiring three readings so that it does . . . get treated exactly as a bill would." As examples of overreaching regulations, Senator Sharp cited the Forestry Practices Act which provides statutory review to the Dept. of Fish and Game. Regulations, however, call for both review and approval. Proposed air quality regulations set standards that are technically impossible for coal-fired power plants to achieve when, after routine maintenance, they are refired from a cold start. Federal law says that states are not to impose more stringent requirements. Proposed state regulations do so. The Senator further noted that past governors have overridden board of fish and board of game decisions, and he cited the False Pass fishery as an example, suggesting that politics is more involved at the administrative than at the legislative level. Mr. Baldwin stressed that the legislature presently has the power to correct problem regulations via statute. Senator Sharp noted that corrective legislation is also subject to veto. Co-chairman Frank voiced his belief that legislative repeal would provide greater opportunity for public input into the regulatory process. He suggested that such repeal would result in only a slight rather than substantial shift in the balance of power. Senator Sharp noted that the legislature, rather than the administration, is often mistakenly blamed for passage of onerous regulations. Senator Rieger referenced language at page 1, line 9, and asked if it would permit retroactive or merely prospective repeal. Mr. Baldwin informed members that the broad wording could be construed to apply retroactively. He advised that he would have to review the Administrative Procedures Act. He then voiced his belief that "We're limited in regulations with retroactive effect." Senator Rieger stressed that the record should indicate that retroactive repeal is not contemplated. Mr. Baldwin concurred that repeal power would not apply to existing regulations. Co-chairman Halford referenced a $2.2 fiscal note accompanying the resolution and queried members concerning disposition of HJR 1. Senator Rieger indicated that conversation with staff of the sponsor evidenced no objection to clarification of language giving rise to concern regarding retroactive repeal. He then formally MOVED to insert the word "prospective" following the word "different" at page 1, line 9. That would prevent ability to backtrack ten years and repeal a regulation upon which businesses and individuals have relied for a substantial period of time. Discussion followed among members relating to the House majority needed to approve Senate changes to HJR 1. Senator Sharp voiced reluctance to place the resolution in jeopardy by effecting a change. Co-chairmen Halford and Frank concurred. Co-chairman Frank also noted need to keep resolution language as simple as possible. Senator Sharp suggested that a letter of intent might accomplish the same end as the proposed amendment. Senator Rieger told members that careful reading of the supreme court ruling on the budget reserve fund evidences that regardless of intent language or the wording of ballot propositions, the court takes "the wording of the constitution on its face." That overrides all else. The wording must thus be clear. Co-chairman Halford voiced opposition to the proposed amendment and called for a show of hands. The amendment was ADOPTED on a vote of 4 to 3 (Senators Rieger, Phillips, Donley, and Zharoff supported the amendment, and Co-chairmen Halford and Frank and Senator Sharp were opposed). End: SFC-96, #17, Side 1 Begin: SFC-96, #17, Side 2 Co-chairman Halford directed that the amendment be incorporated within a Senate Finance Committee Substitute for HJR 1. Senator Sharp MOVED that SCS HJR 1 (Finance) pass from committee with individual recommendations and the accompanying fiscal note. No objection having been raised, SCS HJR 1 (Finance) was REPORTED OUT of committee with a $2.2 fiscal note from the Office of the Governor/Elections. Co-chairmen Halford and Frank and Senators Rieger, Phillips, and Sharp signed the committee report with a "do pass" recommendation. Senators Donley and Zharoff signed "no recommendation."