Legislature(2003 - 2004)

05/04/2004 09:07 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
     CS FOR HOUSE BILL NO. 424(JUD)                                                                                             
     "An Act  relating to review by  the Legislative Affairs  Agency                                                            
     of  certain state  agency  regulations proposed  for  adoption,                                                            
     amendment,  or repeal under the  Administrative Procedure  Act;                                                            
     repealing provisions  relating to annulment of regulations; and                                                            
     providing for an effective date."                                                                                          
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Co-Chair Wilken  stated that this bill, Version 23-LS0732\U,  "would                                                            
establish a  formal process in which  a Legislative review  would be                                                            
included  when  specified  State  agencies'  regulations  are  being                                                            
developed  after  legislation  is  adopted. He  noted  that  several                                                            
fiscal notes accompany the legislation.                                                                                         
BARBARA  COTTING,  Staff  to Representative   Jim Holm,  the  bill's                                                            
sponsor,  affirmed Co-Chair  Wilken's  remarks.  She commented  that                                                            
"Legislators are often  surprised" by how laws they have enacted are                                                            
enforced by  regulation. She reviewed  that, under current  law, the                                                            
lone individual  specified  to review  regulations  is the  Attorney                                                            
General. This  legislation, she continued, would implement  a formal                                                            
process that  would require  the Legislative  Legal Division  of the                                                            
Legislative  Affairs Agency  to review regulations,  written  by the                                                            
various  agencies, in  order to  determine whether  the regulations                                                             
comply with statutory  authority and Legislative intent.  She stated                                                            
that were non-compliance  determined,  the appropriate people  would                                                            
be notified  "and the Legislature  can act." She stressed  that this                                                            
process would have a positive  impact on the State's economy because                                                            
the  Legislative   intent  would   be  upheld  and  a  more   stable                                                            
environment would be created.                                                                                                   
Senator Dyson  asked whether the sponsor's handout  titled "Steps in                                                            
the  Regulation  Adoption  Process"  [copy  on  file]  outlines  the                                                            
current process.                                                                                                                
Ms. Cotting affirmed that it does.                                                                                              
Senator  Dyson asked  where, in  the current  process, the  proposed                                                            
procedure would be implemented.                                                                                                 
Ms. Cotting  responded that  the proposed  Legislative Legal  review                                                            
would occur  between Steps Four "Department  of Law opens  file" and                                                            
Five "Agency publishes  and distributes public notice,  add't notice                                                            
information, and regulations".                                                                                                  
Senator Dyson  asked for further information  regarding the  process                                                            
that would be  implemented were Legislative Legal  to determine that                                                            
the regulations were non-compliant.                                                                                             
Ms. Cotting  responded that, "at that  point, written notice"  would                                                            
be provided to the Department  of Law, the agency that developed the                                                            
regulations, the  Regulation Review Committee, the  President of the                                                            
Senate, and the Speaker of the House.                                                                                           
Senator  Dyson asked  what  action might  occur  upon notification;                                                             
specifically  in  a  situation  where  the  agency  disregarded  the                                                            
Ms.  Cotting  responded   that  other  than  notification   of  non-                                                            
concurrence,  the  State's  Constitution   regarding  separation  of                                                            
powers would not allow the process to be halted.                                                                                
Senator  Dyson surmised  therefore,  that  the option  in that  case                                                            
would  be to  adopt  more State  statutes  in  order to  allow  more                                                            
conformity to occur.                                                                                                            
Ms. Cotting agreed.                                                                                                             
Senator   Dyson  noted  that   other  states   have  allowed   their                                                            
legislature  to change regulation  by resolution.  He asked  whether                                                            
this process would require a Constitutional amendment.                                                                          
Ms Cotting affirmed that  it would. She noted that another component                                                            
of this bill would  remove that provision from State  statute, as it                                                            
was declared unconstitutional.                                                                                                  
Senator Bunde  recalled that a similar  proposal by the Legislature                                                             
had previously been "soundly rejected" in a statewide ballot.                                                                   
DEBRA BEHR,  Assistant Attorney General,  Legislative & Regulations                                                             
Section,  Office  of  the  Attorney  General,   Department  of  Law,                                                            
affirmed that such language  had been on a Statewide election ballot                                                            
in 1980, 1984, and 1986,  and had, she continued, been defeated each                                                            
time by voters.                                                                                                                 
Senator  Bunde  commented  that  were  a  Legislative  Legal  review                                                            
process added  to the current process, modifications  to the process                                                            
might  occur   over  time.   He  opined   that  were  this   process                                                            
implemented, the Legislature  might benefit by being forewarned that                                                            
changes  might  be   required  "sooner  than  later."   However,  he                                                            
cautioned that, without  additional staff, the volume of regulations                                                            
that occur  on an  annual basis  might overwhelm  Legislative  Legal                                                            
Ms.  Behr stated  that  the  Legislative  Affairs  Agency's  initial                                                            
fiscal  note,  in addition  to  requesting  an  additional  attorney                                                            
position,  reflected  funding  from the  Legislature.  However,  she                                                            
noted  that  that  fiscal  note  was zeroed  out  by  the  House  of                                                            
Representatives   Finance  Committee.  She  pointed   out  that  the                                                            
Department of Law's indeterminate  fiscal note #6, which accompanies                                                            
the  bill, is  the result  of  uncertainty  regarding  the level  of                                                            
resources that  might be provided by the Legislature  as well as the                                                            
effect  on the  level of  support  the Department  of  Law would  be                                                            
required to provide to the process.                                                                                             
Senator Bunde  asked the number of regulations that  would have been                                                            
reviewed the previous year, were this process in effect.                                                                        
Ms. Behr responded that  this legislation would establish a priority                                                            
system in  that reviews  could be limited  to regulations  resulting                                                            
from new legislation  or expanded  to review regulations  pertaining                                                            
to regulations  that the Legislature  might perceive "to  have major                                                            
policy  implications."  She reiterated  that,  in addition  to  this                                                            
unknown element, Legislative  Legal workloads during the Legislative                                                            
Session would require Legislative Council prioritization.                                                                       
Senator   Bunde  asked   for  further  information   regarding   the                                                            
determinations   of  major   policy  implications   by  Legislative                                                             
Ms. Behr  referred  the Committee  to the  prioritization  procedure                                                            
language  located in Section  2, subsection  (b)(1) and (2)  on page                                                            
two, lines 7-13 that reads as follows.                                                                                          
     (b) Reviews shall be conducted under (a) of this section in                                                                
     the following order of priority:                                                                                           
          (1) proposed regulations that would implement newly                                                                   
     enacted legislation;                                                                                                       
          (2) proposed regulations requested in writing to be                                                                   
     reviewed   by   a  standing   committee,   the  Administrative                                                             
     Regulation  Review  Committee, or  the legislative  council  as                                                            
     implicating major policy development.                                                                                      
Ms. Behr stated  that this language would assist in  avoiding review                                                            
of every regulation which  could, she exampled, range from reviewing                                                            
regulations  pertaining  to non-major  priority things  such as  the                                                            
raising  of fees  five dollars  or increasing  continuing  education                                                            
requirements for hairdressers.  Therefore, she stated that the bill,                                                            
as written,  would allow  regulations to be  reviewed as desired  by                                                            
the Legislature.                                                                                                                
DAVE STANCLIFF,  Staff, Administrative Regulatory  Review Committee,                                                            
Office  of  Senate  President  Gene  Therriault,  stated  that  this                                                            
legislation  would develop  a "cooperative  quality review"  process                                                            
that, by  allowing the Legislature  to be  involved in the  process,                                                            
would  serve  to  encourage  that  regulations   are  "written  more                                                            
carefully." He  noted that were a prioritization process  developed,                                                            
Legislative  Legal staff would work  with the Department  of Law and                                                            
the various departments'  regulation writers to enhance the process.                                                            
Furthermore,  he  continued,   that  were  the  system  to  work  as                                                            
intended, the Legislature could increase funding if so desired.                                                                 
Senator Olson  asked how controversial, high visibility  regulations                                                            
such as those pertinent  to the Department of Fish and Game would be                                                            
Ms. Behr stated that the  Department of Fish and Game is exempt from                                                            
this review proposal as  that Department has its own Board and has a                                                            
different regulation process.                                                                                                   
Co-Chair  Green  moved  to  report  the  bill  from  Committee  with                                                            
individual recommendations and accompanying fiscal notes.                                                                       
There  being  no  objection,  CS  HB  424(JUD)   was  REPORTED  from                                                            
Committee with  zero fiscal note #4,  dated March 24, 2004  from the                                                            
Department  of Health  and  Social Services;  zero  fiscal note  #5,                                                            
dated March 25, 2004 from  the Legislature; and indeterminate fiscal                                                            
note #6, dated March 24, 2004 from the Department of Law.                                                                       

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