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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mechanical Contractors of Alaska, Inc. v. State (05/07/2004) sp-5805

Mechanical Contractors of Alaska, Inc. v. State (05/07/2004) sp-5805

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

MECHANICAL CONTRACTORS        )
OF ALASKA, INC.,                        )
                              )    Supreme Court No. S-10823
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-01-10347 CI
                              )
STATE OF ALASKA, DEPARTMENT)       O P I N I O N
OF PUBLIC SAFETY, STATE OF    )
ALASKA, DEPARTMENT OF                    )     [No. 5805 - May 7,
                                   2004]
COMMUNITY and ECONOMIC        )
DEVELOPMENT, COLONEL               )
GLENN G. GODFREY,                       )
Commissioner, and DEBBIE B.        )
SEDWICK, Commissioner,             )
                              )
             Appellees.                 )
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Joseph W. Geldhof,  Law  Office
          of  Joseph W. Geldhof, Juneau, for Appellant.
          Dean  J. Guaneli, Assistant Attorney General,
          and   Gregg  D.  Renkes,  Attorney   General,
          Juneau, for Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION

          Mechanical  Contractors  of Alaska,  Inc.  appeals  the

superior  courts  grant  of  summary judgment  in  favor  of  the

Department  of Public Safety and the Department of Community  and

Economic Development that upheld the departments adoption of  the

International  Mechanical  Code.  Mechanical  Contractors  argues

that  the  departments  exceeded their  statutory  authority  and

violated the Administrative Procedures Act when they adopted  the

International   Mechanical  Code  in  2001.   Because   the   two

departments  have authority to adopt the code, and  because  they

substantially complied with the Administrative Procedures Act, we

affirm the decision of the superior court.

II.  FACTS AND PROCEEDINGS

          The  Department  of  Public Safety (DPS)  has  a  broad

statutory  mandate  to  adopt  regulations  for  the  purpose  of

protecting   life  and  property  from  fire  and  explosion   by

establishing  minimum standards . . . for fire  and  life  safety

criteria  in . . . public buildings and residential buildings  of

four  or more units.1  For more than two decades, DPS has adopted

the  building, mechanical, and fire codes for the  state.   These

integrated  codes govern construction standards in all  buildings

under  DPSs  jurisdiction and are typically updated  every  three

years  as  new  model codes are published by  the  nations  model

building  code organizations.  The building code is  the  primary

tool  for regulating construction standards, and all other  codes

must  integrate with the building code.  In 2001 DPS adopted  the

International  Building, Fire, and Mechanical  Codes.   Only  the

mechanical code is the subject of this litigation.

          This  lawsuit  arose  due to changes  in  the  way  the
nations three model building code organizations publish the model
codes.    Until  the  mid-1990s  three  organizations    Building
Officials  and  Code Administrators, International Conference  of
Building   Officials,   and  Southern  Building   Code   Congress
International   each  published regional building  codes.   Until
1997  the International Conference of Building Officials  jointly
published  the  Uniform  Mechanical Code with  the  International
Association  of Plumbing and Mechanical Officials.  In  1994  the
three  building code organizations formed the International  Code
Council,  which now publishes one national building  code  rather
than   three   separate  regional  codes.2    Consequently,   the
          International Building Code is the only model building code
published in the United States.  Only the International Fire Code
and International Mechanical Code are designed to correlate fully
with this code.
          When  DPS began its periodic update of the construction
codes in 1999, the 2000 International Building Code was the  most
current  code  available  and  the only  national  code.  Because
Alaskas  existing  fire  and  mechanical  codes  did  not   fully
integrate with the International Building Code, DPS began a  two-
year  process  to  adopt the International  Fire  and  Mechanical
Codes.  DPS  notified  the Department of Community  and  Economic
Development  and  the  Department of  Labor  about  this  process
because  these agencies also regulate the construction  industry.
The  legislature  allocated  $98,100  in  fiscal  year  2001  for
adoption  of the new codes, a process that would entail extensive
review  of the current codes, expanded public hearings, statewide
meetings  with  trade organizations, and a complete  revision  of
Alaska  Administrative Code (AAC) Title 13, chapters 50, 52,  and
55.
          In  August  2000 DPS hired Ross Fosberg  to  coordinate
adoption of the International Codes.  Fosberg formerly served  as
the  chief  of the Anchorage Fire Department and as the Anchorage
Fire  Marshal, and he had thirteen years of experience as a  fire
protection   consultant.   He  contacted   a   broad   range   of
organizations  impacted by the states building  codes  and  asked
them  to  send  representatives to participate in  working  group
meetings to draft proposed regulations adopting the 2000  version
of the International Building, Fire, and Mechanical Codes.  These
meetings were held in Fairbanks, Soldotna, Juneau, and Anchorage.
          Pursuant to the Alaska Administrative Procedures  Act,3
DPS   arranged  for  statewide  public  notice  of  the  proposed
regulations.   After  notice  was  published,  DPS  discovered  a
typographical  error:   The  notice mistakenly  stated  that  DPS
proposed  to repeal the Uniform Mechanical Code and re-adopt  the
International Fire Code (rather than the International Mechanical
Code (IMC)).  A corrected notice was sent to the individuals  and
          organizations on the list of interested persons, but Mechanical
Contractors  was not notified due to an oversight.  Additionally,
the incorrect notice was published in some newspapers.
          After  considering  public  comment,  DPS  adopted  the
regulations   in  March  2001.   Because  Mechanical  Contractors
complained that it did not receive notice of the proposed changes
and  that incorrect notice was published in some newspapers,  DPS
re-opened  the  public comment period and published  a  corrected
public notice. DPS also mailed notice to each licensed mechanical
administrator in Alaska. DPS received significant public  comment
both  in favor of the proposed adoption and in opposition to  it.
The  Chair  of the legislatures Administrative Regulation  Review
Committee  recommended delaying adoption of the IMC to allow  the
legislature  an  opportunity  to  address  the  issue,  and   the
legislatures Division of Legal and Research Services opined  that
adoption of the IMC might exceed DPSs statutory authority.  Based
upon  public comment, DPS made additional changes to the proposed
regulations and agreed to delay implementation by several months.
DPS  re-adopted  the regulations in June 2001 with  an  effective
date of September 15, 2001.
          Because   the  Department  of  Community  and  Economic
Development  (DCED)  is  responsible for  testing  and  licensing
mechanical administrators, it updated its examinations to reflect
the  IMC  as the states testing standard rather than the  Uniform
Mechanical Code, which it had used since 1988.  This required  an
amendment to DCED regulations to allow the department to base the
examinations  on the mechanical code adopted by  DPS.4   Existing
statutes  relating  to  DCEDs  testing  and  licensing  authority
referred to the Uniform Mechanical Code.5
          After   the   regulations   took   effect,   Mechanical
Contractors   moved  for  a  preliminary  injunction   to   block
implementation  of  the  IMC  on the grounds  that  its  adoption
violated  the  Administrative Procedures Act and conflicted  with
statutes  that  specifically referenced  the  Uniform  Mechanical
Code.  The superior court denied the preliminary injunction.  The
state  then moved for summary judgment and Mechanical Contractors
          cross-moved for summary judgment.  The superior court granted
summary  judgment  to  the state, finding that  adoption  of  the
International   Mechanical  Code  was  within   the   departments
statutory authority and that the agencies substantially  complied
with  the  requirements  of  the Administrative  Procedures  Act.
Mechanical Contractors now appeals.
III. STANDARD OF REVIEW

          I.   We review a grant of summary judgment de novo and will

affirm if there are no genuine issues of material fact and if the

moving  party is entitled to judgment as a matter  of  law.6   We

review questions of law, including the interpretation of statutes

and   regulations,  using  our  independent  judgment.7   As   we

discussed in OCallaghan v. Rue, we apply a three-part analysis to

assess the validity of administrative regulations.8

          First   we  must  determine  whether  the  agency   has
statutory authority to promulgate regulations.9  If an agency has
acted  within  its  authority,  we  then  consider  whether   the
regulation  is  consistent  with  and  reasonably  necessary   to
implement  the statutes authorizing its adoption, and whether  it
is  reasonable  and not arbitrary.10  In making  the  consistency
determination, we use our independent judgment unless  the  issue
involves  agency  expertise or the determination  of  fundamental
policy  questions on subjects committed to an agencys discretion,
in which case we employ a rational basis standard and defer to an
agencys  determination  so  long as  it  is  reasonable  and  not
arbitrary.11   Whether  a regulation is reasonably  necessary  to
implement  a statute is a fundamental policy determination  which
will be reviewed using a rational basis standard.12  We also use a
deferential standard to conduct the reasonable and not  arbitrary
review.13   Finally,  we  will consider  whether  the  regulation
conflicts with any other statutes.14  This is a legal question to
which we apply our independent judgment.15
IV.  DISCUSSION

     A.   DPS and DCED Acted Within Their Statutory Authority When
          They Adopted the IMC.
          
          Mechanical   Contractors   first   claims   that    the

          departments exceeded their statutory authority by adopting the

IMC in violation of four express statutory provisions referencing

the  Uniform  Mechanical Code.  Although none of  these  statutes

relates  to the authority of the Department of Public  Safety  to

adopt  fire and life safety codes, Mechanical Contractors  argues

that  DPS cannot use its general grant of statutory authority  to

adopt  a  mechanical code that conflicts with specific references

to  the  Uniform Mechanical Code in other sections of the  Alaska

Statutes.   These  statutes include: AS  08.18.171(7)(D)  and  AS

08.40.490(3)(A),  which  define a  mechanical  administrator  and

mechanical  contractor  as  persons  who  install[]  or  modify[]

mechanical piping and systems . . .  subject to . . . the Uniform

Mechanical  Code; AS 08.40.270(a)(3), which requires  familiarity

with  the  Uniform Mechanical Code in order to be licensed  as  a

mechanical   administrator;  and  AS  18.56.300(e)(3)(B),   which

governs  construction  standards for homes financed  through  the

Alaska Housing Finance Corporation.

          To  determine  whether the departments  exceeded  their

statutory  authority,  we  apply the three-part  OCallaghan  test

described  above.   Mechanical  Contractorss  argument  is   most

relevant  to  the  third  part  of  this  analysis,  whether  the

regulations conflict with other statutes.

          1.   DPS and DCED have authority to issue regulations.

          The  first  question  is  whether  DPS  and  DCED  have

authority  to  issue  regulations.  Even  Mechanical  Contractors

acknowledges  that  DPS has a fantastically  broad  authority  to

adopt  regulations.  Indeed, DPS not only can issue  regulations,

but  it  must do so: The Department of Public Safety shall  adopt

regulations for the purpose of protecting life and property  from

fire  and explosion by establishing minimum standards for .  .  .

fire  and  life  safety  criteria in . . . public  buildings  and

residential  buildings with four or more dwelling units.16   DCED

likewise  has  express statutory authority and responsibility  to

adopt  regulations: The department shall adopt regulations  under

          AS 44.62 (Administrative Procedure Act) relating to the

examination and licensing of mechanical administrators.17

          2.   Adoption  of  the  IMC  was  consistent  with  and
               reasonably  necessary  to implement  the  statutes
               authorizing  its adoption and was  reasonable  and
               not arbitrary.
               
               a.   Adoption  of the IMC was consistent with  the
                    statutes authorizing its adoption.
                    
          The  next question is whether adoption of the  IMC  was

consistent  with  the  statutes  authorizing  its  adoption.   In

determining  whether a regulation is consistent with  an  agencys

statutory authority, we exercise our independent judgment  unless

the   issue  involves  agency  expertise  or  fundamental  policy

considerations, in which case we use a rational basis standard.18

The  superior  court  found that adoption of  a  mechanical  code

involves  fundamental policy questions and it  thus  applied  the

more  deferential  standard  of review.   Mechanical  Contractors

argues that the superior court erred in applying this deferential

standard.   But  in  our  view, the superior  courts  consistency

determination  withstands  scrutiny even  under  the  independent

judgment test.

          As   discussed   above,  DPS  is  required   to   adopt

regulations  to  establish minimum standards for  fire  and  life

safety in commercial and some residential buildings.19  Mechanical

codes cover air flow systems, and these systems impact upon  fire

and  life safety.  Thus, adoption of a mechanical code by DPS  is

consistent  with the statutes authorizing its adoption,  and  not

even  Mechanical Contractors challenges DPSs authority  to  adopt

the Uniform Mechanical Code.  At issue is whether adoption of the

IMC  is  consistent  with the same grant of  statutory  authority

under  which DPS previously adopted the Uniform Mechanical  Code.

Because nothing in AS 18.70.080 requires adoption of a particular

mechanical  code,  and because DPSs decision was  reasonable,  we

conclude  that  adoption  of  the IMC  was  consistent  with  the

statutes authorizing its adoption.

          We  likewise conclude that DCEDs adoption of the IMC as

          a testing standard is consistent with its statutory authority.

DCED is required to conduct licensing examinations for mechanical

administrators and to establish standards for license  renewal.20

Alaska   Statute  08.40.270(a)(3)  requires  DCED  to  administer

examinations  that  assess  an applicants  familiarity  with  the

Uniform  Mechanical Code currently in effect in the state.   When

DPS repealed the Uniform Mechanical Code and replaced it with the

IMC,  the  IMC became the mechanical code currently in effect  in

the  state,  and  DCED  was  left  with  the  choice  of  testing

applicants  on  an obsolete code or amending its  regulations  to

require  competency  in  the  code currently  in  effect.   DCEDs

decision to adopt the IMC as the licensing standard is consistent

with  the  legislatures  intent when it established  testing  and

licensing requirements for mechanical administrators.

          The  legislature established these requirements in 1988

to  protect  the public from shoddy workmanship and to  establish

uniform  standards  to  govern the  industry.21   Testimony  from

committee  meetings  held to discuss establishment  of  licensing

requirements  for  this  trade focused on  the  lack  of  uniform

standards  and the problems that arise from improperly  installed

water,  sewer,  and  heating systems.22  For example,  Eugene  R.

Rutland,  the  Executive  Director of Mechanical  Contractors  of

Fairbanks, testified in support of the licensing requirements and

said  that licensing should ensure basic competence to perform  a

specific  service.23  The state would ensure basic competence  by

testing mechanical administrators for familiarity with the  codes

under  which  they work; and because the Uniform Mechanical  Code

was  the mechanical code adopted by DPS at that time24 it  became

one  of  the standards for professional competence in this trade.

Once  the IMC was adopted as the states construction standard  it

was  consistent for DCED to adopt this code as the  standard  for

licensing.

               b.   Adoption of the IMC was reasonably necessary to implement
                    the statutes authorizing its adoption.
                    
          The  next question is whether adoption of the  IMC  was

          reasonably necessary to implement the statutes authorizing its

adoption.  If  we find that a regulation is consistent  with  the

statutory  purpose,  we  will not generally  require  a  separate

showing  of  reasonable  necessity.   As  we  stated  in   State,

Department of Revenue, Permanent Fund Dividend Division v. Cosio:

          Strictly  applied,  inquiry  into  whether  a

          regulation  is  necessary as  a  means  to  a

          legislative  end  would mire  this  court  in

          questions   of   public   policy   and    the

          advisability of possible alternatives.   Such

          a  searching inquiry is beyond our  authority

          and  expertise.  It is a rare  case  where  a

          regulation,  although not  inconsistent  with

          the   purpose  of  the  statute,  is   wholly

          superfluous  to  the  achievement   of   that

          purpose.[25]

          The record indicates that DPS adopted the International

Building  Code  because  it was the most  current  building  code

available  and  the  only national building  code  in  existence.

Additionally, DPS was concerned that a failure to adopt the  most

recent  building  code could jeopardize federal  disaster  relief

funding  because the Federal Emergency Management Agency provides

full  disaster  relief funding only to states with fully  updated

building  codes.  DPS also adopted the IMC because  it  wanted  a

mechanical  code that was consistent with both the  International

Building and Fire Codes and because it believed that the IMC  was

superior  to the Uniform Mechanical Code.  Finally, DPS projected

substantial cost savings in construction projects that  used  the

IMC rather than the Uniform Mechanical Code.

          Likewise, DCED adopted the IMC as the testing  standard

for  mechanical administrators because DPS repealed  the  Uniform

Mechanical  Code and replaced it with the IMC.  DCED updates  its

licensing examinations when DPS updates the model codes,  and  it

amended  its  regulations to use the IMC as the testing  standard

          when DPS adopted that code.  If the IMC is the standard used by

the  construction  industry in Alaska, requiring  proficiency  in

this  code  is reasonably necessary to implement the  examination

standards of AS 08.40.270.

               c.   Adoption  of the IMC was reasonable  and  not

                    arbitrary.

          To  determine if a regulation is reasonable, we examine

whether  the agency has taken a hard look at the salient problems

and  has  genuinely  engaged  in  reasoned  decision  making.  26

Mechanical  Contractors  argues that  DPS  failed  to  engage  in

reasoned decision making before adopting the IMC and that the fix

was  in from the beginning.  According to Mechanical Contractors,

DPS   harbored   a   pre-conceived  agenda   to   adopt   various

international   codes  and  demonstrated  a  complete   lack   of

objectivity  in adopting the IMC. As evidence that  adoption  was

arbitrary, Mechanical Contractors claims that DPS adopted the new

code  standard  without fully considering  the  impact  on  other

agencies that use the Uniform Mechanical Code.

          DPS  responds that it was reasonable to adopt the  most

current building code available, and that its decision to  do  so

necessitated  adoption of the corresponding fire  and  mechanical

codes.   DPS  adopted the International Codes  after  a  two-year

process  that  included  notification  of  other  agencies,  work

sessions throughout the state, and two public notice and  comment

periods.   This  process  was funded by a specific  appropriation

from  the  legislature.  The record documents substantial  public

interest in the new proposed code, and it shows that DPS  revised

the proposed regulations after each comment period.

          The  record  is  unclear  when DPS  became  aware  that

adoption  of  the  IMC  would  run  up  against  other  statutory

references  to  the Uniform Mechanical Code.  A letter  from  the

Department  of  Labor, dated May 29, 2001, indicated  its  belief

that  the IMC would conflict with other statutes, and a  June  7,

2001 letter from DCED raised the concern that adoption of the IMC

          would conflict with testing standards requiring use of the

Uniform  Mechanical Code.  DPS received these letters before  the

expiration of the public comment periods on the proposed changes.

DPS  made  specific exceptions in the IMC to accommodate  use  of

other codes, such as the Uniform Plumbing Code, which is used  by

the  Department  of  Labor.   Additionally,  it  entered  into  a

reimbursable services agreement with DCED to pay for the cost  of

updating  the  licensing  examinations.   As  it  developed,   no

reimbursement was necessary.

          The   record  does  not  support  the  conclusion  that

adoption   of   the   IMC  was  arbitrary  and  not   reasonable,

particularly given the deferential standard of review we  use  to

make this determination.27  The  International Building Code  was

the  most  current  building code available and  represented  the

combined   efforts   of   the  three   national   building   code

organizations.   The  International  Fire  Code  and   IMC   were

developed  for  use  with  this  code.   DPS  developed  the  new

regulations adopting these codes over a two-year period,  and  it

amended the proposed regulations based upon public comment.   DPS

made  efforts to ensure that adoption of the code was  consistent

with  the statutory requirements of other agencies.  Accordingly,

adoption of the IMC was not arbitrary.

          3.   Adoption  of the IMC does not conflict with  other
               statutes.
               
           Mechanical Contractors argues that adoption of the IMC

is  per  se  invalid because DPS cannot use a  general  grant  of

authority  to  adopt a fire life safety code that conflicts  with

statutes  that specifically refer to another model code.28    DPS

responds  both  that these statutes do not limit  DPSs  authority

under AS 18.70.080 and that adoption of the IMC can be harmonized

with   the  intent  of  these  apparently  conflicting  statutory

references to the Uniform Mechanical Code.

          Whether  adoption  of  the  IMC  conflicts  with  other

statutes is a question of law to which this court will apply  its

independent judgment.29  When we engage in statutory construction

          we will presume that the legislature intended every word,

sentence, or provision of a statute to have some purpose,  force,

and effect, and that no words or provisions are superfluous.30  At

the same time,

          [s]trict  construction does not require  that
          statutes  be  given  the  narrowest   meaning
          allowed   by  their  language;  rather,   the
          language  should  be given  a  reasonable  or
          common sense construction, consonant with the
          objectives of the legislature.  The intent of
          the  legislature must govern and the policies
          and  purposes  of the statute should  not  be
          defeated.[31]
          
Determination of whether adoption of the IMC conflicts with other

statutes  requires examination of the specific statutory language

and the intent behind this language.

          Three  of the four statutory references to the  Uniform

Mechanical   Code  were  enacted  in  legislation  that   created

licensing  requirements  for mechanical  administrators.32   This

legislation amended AS 08.40 to require a state license in  order

to work as a mechanical administrator.33  It enacted section .270

of  AS  08.40  to  require  DCED  to  test  applicants  on  their

familiarity  with  the  Uniform Plumbing Code,  Uniform  Swimming

Pool,  Spa, and Hot Tub Code, Uniform Solar Energy Code, and  the

Uniform Mechanical Code currently in effect in the state.34   And

it   added   subsection   .490(3)(A)  to  define   a   mechanical

administrator as one

          responsible for . . . installing or modifying
          mechanical   piping  and  systems,   devices,
          fixtures,   equipment,  or  other  mechanical
          materials  subject  to the  Uniform  Plumbing
          Code, Uniform Swimming Pool, Spa, and Hot Tub
          Code,  Uniform  Solar Energy  Code,  and  the
          Uniform Mechanical Code as published  by  the
          International  Association  of  Plumbing  and
          Mechanical  Officials and  the  International
          Conference of Building Officials.[35]
          
The  same legislation amended AS 08.18 to require, as a condition

of state registration, that mechanical contractors be licensed as

a mechanical administrator or employ someone who is so licensed.36

Section .171(8)37 of this chapter defines a mechanical contractor

as a:

          contractor whose business operations  involve
          install[ing] or modify[ing] mechanical piping
          and  systems  . . . subject to the  following
          codes   as  published  by  the  International
          Association   of   Plumbing  and   Mechanical
          Officials or the International Conference  of
          Building Officials:
               (A) Uniform Plumbing Code;
               (B)  Uniform Swimming Pool, Spa, and Hot
          Tub Code;
               (C) Uniform Solar Energy Code;
               (D) Uniform Mechanical Code.
          
          Collectively,   these   statutes  create   professional

licensing   requirements   for  mechanical   administrators   and

contractors,  and they require DCED to administer an  examination

to   ensure  applicants  familiarity  with  a  number  of  codes,

including the Uniform Mechanical Code currently in effect in  the

state.  Mechanical administrators and contractors are defined  in

reference  to  four  codes that govern their trades.   Mechanical

Contractors  argues that since these statutes specifically  refer

to   the   Uniform  Mechanical  Code  rather  than  some  generic

mechanical code, this court should accord the language its  plain

meaning and require DCED to continue using the Uniform Mechanical

Code.    Because  we  will  give  the  language  a  common  sense

construction  consistent with the objectives of the  legislature,

we must examine the history of House Bill 472.38

          Until  1988  mechanical contractors and  administrators

were  not licensed by the state, and anyone able to purchase  the

required   bonds   and  insurance  could  become   a   registered

contractor.39  House Bill 472 sought to solve two problems facing

the construction industry at that time.  The first purpose was to

make  it easier for mechanical contractors to obtain construction

bonds  by  defining their trade so that they were not treated  as

general contractors, whose bonds are much more expensive.40   The

second  purpose  was  to  protect  the  public  from  substandard

workmanship  by establishing minimum competency requirements  for

          mechanical contractors.41  One of the biggest challenges in

drafting  this  legislation was determining how to distinguish  a

specialty contractor, which is defined as a contractor whose work

requires use of up to three trades, from a mechanical contractor,

which is defined by reference to the codes under which he works.42

The  legislative counsel who assisted in drafting this bill wrote

to  Representative Mark Boyer, the bills sponsor,  that  counsels

lack  of knowledge of the industry made it difficult for  him  to

define  the  term  mechanical administrator to  include  all  who

should  be  subject to the legislation.43  Eugene R.  Rutland  of

Mechanical Contractors assisted in drafting this legislation, and

he  also struggled with how to define a mechanical administrator.

In a letter to Representative Boyer, Rutland wrote that:

          The  definition of a mechanical administrator
          is   meant  to  encompass  persons  who  work
          covered  under the referenced codes.   It  is
          the  best definition I am capable of  at  the
          present   time  without  going  into   detail
          mentioning Plumbing, Pipefitting, Sprinklers,
          Ventilation, Air-conditioning, Refrigeration,
          etc.   The  thought is that by being detailed
          someone  may be exempt who should  have  been
          covered  because  they were not  specifically
          mentioned.[44]
          
Ultimately,   the   legislature  opted   to   define   mechanical

contractors  and  administrators  as  persons  who  perform  work

subject to the four separate codes, and it required competency in

these codes as a condition of licensing and registration.45   The

Uniform Mechanical Code was used in Alaska at that time so it was

included  in  the  definition.   While  it  is  clear  that   the

legislature  intended  these codes  to  serve  as  standards  for

professional  competence,  there  is  no  indication   that   the

legislature  sought to limit the discretion of DCED to  establish

licensing requirements for mechanical administrators.   There  is

every reason to believe that H.B. 472 would have referred to  the

IMC had that code been used by DPS in 1988.

          The final statutory reference to the Uniform Mechanical

Code  is  found  in  AS  18.56.300,  which  governs  construction

          standards for housing eligible for loans from the Alaska Housing

Finance  Corporation.   In 1990 Representative  C.E.  Swackhammer

proposed  H.B.  368 to insure that houses financed  by  AHFC  are

properly constructed, thereby protecting consumers from buying  a

house that has deficiencies which pertain to life safety.46  This

legislation  implemented various requirements to  obtain  a  home

loan  from  the AHFC, the most important of which  was  that  new

homes  must  meet the requirements of the state building  code.47

This  section  defines  the state building  code  for  mechanical

standards as the standards set out in the version of the  Uniform

Mechanical Code adopted by the Department of Public Safety  under

AS  18.70.080.48  Mechanical Contractors claims that the specific

reference to the Uniform Mechanical Code curtails DPSs discretion

to  adopt  the  IMC.   The legislative history  contradicts  this

assertion.

          Swackhammers  own  sectional  analysis  of   H.B.   368

explains  that  the [s]tate building code refers to  the  minimum

building  and  mechanical  code  adopted  by  regulation  by  the

Department  of Public Safety under AS 18.70.080.49  There  is  no

indication that the legislature sought to require DPS to adopt  a

particular  code.   In  fact,  this suggestion  was  specifically

addressed,  and  ultimately rejected, after a trade  organization

recommended  drafting  the legislation to require  DPS  to  adopt

specific  provisions  of  the  Uniform  Building  Code  that  the

department had not previously adopted.50  The legislative counsel

who  helped  draft this legislation strongly recommended  against

such  an approach, noting that, unlike the National Electric Code

and  the  Uniform Plumbing Code, both of which were  specifically

adopted  by  statute,  the legislature has  merely  said  to  the

commissioner  of  public  safety  [that]  it  is  that  officials

responsibility to determine minimum fire safety provisions.51  The

legislation  ultimately defined the state building code  as:  the

version of the Uniform Building Code adopted by the Department of

Public  Safety  under  18.70.080;  the  version  of  the  Uniform

          Mechanical Code adopted by the Department of Public Safety under

AS  18.70.080;  the minimum plumbing code adopted for  the  state

under   AS   18.60.705;  and  the  minimum  electrical  standards

prescribed  by  AS  18.60.580.52   This  wording  preserves  DPSs

discretion.  The Alaska Housing Finance Corporations use  of  the

International  Codes  as  a  minimum  standard  for  quality   is

consistent with the legislatures intent.

          Mechanical  Contractorss  primary  argument,  that  the

specific  statutory  references to the  Uniform  Mechanical  Code

should control over the general grant of authority given to  DPS,

has limited application in Alaska and should not be applied where

the specific and general provisions may be harmonized.53  None of

the   statutory   references  to  the  Uniform  Mechanical   Code

specifically  relates  to  the  authority  of  DPS  to  adopt   a

particular  mechanical code.  Nothing in the legislative  history

supports  the  assertion  that  these  four  statutes  should  be

interpreted  to  limit  DPSs discretion under  AS  18.70.080  and

require  it  to  re-adopt the Uniform Mechanical  Code.   To  the

contrary, these statutes are best understood as creating  minimum

standards  for professional competency and construction  quality,

both  of which can be achieved by the IMC.  DPSs adoption of  the

IMC  is  consistent with its statutory authority.  DCEDs adoption

of the states mechanical code is consistent with the legislatures

intent  to  ensure  professional competency in  the  construction

industry.

     B.   Adoption  of the IMC Did Not Violate the Administrative
          Procedures Act.
          
          A.   Mechanical Contractors also argues that the IMC was adopted

in  violation  of the Administrative Procedures Act  because  the

decision  to  adopt  the  code  was  arbitrary  and  because  the

departments  failed  to prepare a fiscal note.   Regulations  are

presumed procedurally valid once a certified copy has been filed,

and  Mechanical  Contractors must show a substantial  failure  to

comply  with  the  Administrative Procedures Act  to  rebut  this

presumption.54   We discussed whether adoption  of  the  IMC  was

          reasonable in Part IV.A.2., so here we address only whether the

departments  failed to provide a fiscal note as  required  by  AS

44.62.195.

          1.   Were  DPS and DCED required to prepare a fiscal note?

          Alaska Statute 44.62.195 provides:

          [i]f the adoption, amendment, or repeal of  a
          regulation     will     require     increased
          appropriations  by the state, the  department
          or  agency affected shall prepare an estimate
          of  the appropriation increase for the fiscal
          year following adoption, amendment, or repeal
          of  the  regulation  and  for  at  least  two
          succeeding fiscal years.
          
          DPS  and  DCED  both  claim that  no  fiscal  note  was

necessary  because adoption of the IMC did not require additional

appropriations in the year following adoption or thereafter.  The

state  argues  that the only appropriation required to  implement

the  IMC  was the legislatures 2001 appropriation of $98,100  for

code adoption efforts, which was made before adoption of the  new

model code.  Because any code implementation expenses were to  be

paid from these funds, the state argues that adoption of the  new

code did not lead to increased appropriations by the state.   The

record  indicates that while DCED expected costs  of  $16,000  to

prepare  new testing materials, DPS agreed to pay this cost  from

the  existing  $98,100 allocation from the  legislature  if  that

became necessary.  But the expenditure never became necessary.

          DPS   and   DCED  acknowledge  that  this  court   will

invalidate regulations adopted without a fiscal note if there  is

convincing evidence that any state department anticipated a  need

for additional appropriations due to adoption of the regulations.55

In Turpin v. North Slope Borough,56 we held that a fiscal note is

required  if any additional appropriation is required, regardless

of the source, and we invalidated a regulation adopted without  a

fiscal  note  based  on  evidence  that  several  state  agencies

anticipated a need for additional funds.57  Mechanical Contractors

argues  that  implementation of the IMC will  require  additional

appropriations.   To  support this claim, Mechanical  Contractors

          points to DCEDs anticipated need for funding to revise licensing

examinations and to an alleged threat by the state to  take  over

the  Anchorage  building review process.  Mechanical  Contractors

also argues that DPS and DCED are trying to thwart the intent  of

the  fiscal  note  requirement  by  slid[ing]  funds  around  and

cobbl[ing] together funding sources from disparate agency sources

to  avoid  having  to  seek  additional appropriations  for  code

implementation.

          The  record does not support these claims.  DPS  agreed

to  use existing funding sources to pay for testing changes,  and

there  is  no  evidence  that any state  agency  anticipated  any

additional  expenses  in  the  year  of  implementation   or   in

subsequent  years. There is no evidence that the state threatened

to take over the Anchorage building review process.58

          Neither  DPS nor DCED anticipated a need for additional

appropriations  to adopt the IMC, and no additional  funding  was

necessary in the two years after its adoption in September  2001.

No fiscal note was required.

V.   CONCLUSION

          The  Department of Public Safety and the Department  of
Community  and  Economic Development acted within  the  scope  of
their  delegated  authority when they adopted  the  International
Mechanical  Code  and  they  substantially  complied   with   the
requirements  of the Administrative Procedures Act.  Accordingly,
we AFFIRM the judgment of the superior court.
_______________________________
     1    AS 18.70.080(a)(2).

     2     These  organizations merged in 2002.   Press  Release,
International  Code  Council,  Building  safety  groups  vote  to
approve     ICC    consolidation    (Oct.    1,     2002),     at
http://www.iccsafe.org/news/nr/021001consolidation.htm      (last
visited Mar. 1, 2004).

     3    AS 44.62.190

     4    12 AAC 39.992(b); 12 AAC 21.990(7).

     5    AS 08.40.270(a)(3); AS 08.40.490(3)(A).

     6     Therchik  v. Grant Aviation, 74 P.3d 191, 193  (Alaska
2003).

     7    Id.

     8    996 P.2d 88, 94 (Alaska 2000).

     9    Id. (citing Warner v. State, 819 P.2d 28, 30-31 (Alaska
1991)).

     10    Id. (quoting Chevron U.S.A., Inc. v. LeResche, 663 P.2d
923, 927 (Alaska 1983)).

     11    Id. at 94-95.

     12    Id.

     13    Id. at 95.

     14    Id.

     15    Id.

     16    AS 18.70.080(a)(2).

     17    AS 08.40.240.

     18    OCallaghan, 996 P.2d at 94.

     19    AS 18.70.080.

     20    AS 08.40.240-.250.

     21    See AS 08.40.210; Ch. 132,  9, SLA 1988.

     22    See H. Fin. Comm. Minutes (March 22, 1988) (comments of
Eugene R. Rutland, Executive Director, Mechanical Contractors  of
Fairbanks).

     23    Id.

     24     See  13  AAC  50.020(12)(b) (1988) (adopting  Uniform
Mechanical Code by reference to Uniform Building Code).

     25    858 P.2d 621, 624 n.1 (Alaska 1993).

     26     Stepovak-Shumagin  Set Net  Assn  v.  State,  Bd.  of
Fisheries,  886 P.2d 632, 637 (Alaska 1994) (quoting  Gilbert  v.
State, Dept of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)).

     27     OCallaghan v. Rue, 996 P.2d 88, 94-95 (Alaska  2000).
See  also  Gilbert, 803 P.2d at 397 (holding that perfection  not
required  for regulation to be reasonable; courts task is  simply
to  determine whether regulation is reasonably related to agencys
statutory mandate).

     28     Mechanical Contractors also claims that  adoption  by
regulation violates the doctrine of separation of powers.   There
is  no separation of powers problem because the departments acted
within  the  scope of their delegated authority.  See supra  Part
IV.A.2.

     29     See Church v. State, Dept of Revenue, 973 P.2d  1125,
1127 (Alaska 1999).

     30    See Kodiak Island Borough v. Exxon Corp., 991 P.2d 757,
761  (Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist.,  864
P.2d 526, 530-31 (Alaska 1993)).

     31     Mack v. State, 900 P.2d 1202, 1205 (Alaska App. 1995)
(quoting  Belarde  v. Anchorage, 634 P.2d 567, 568  (Alaska  App.
1981)).

     32    See ch. 132,  9, SLA 1988.

     33    See id. (adding section .260).

     34    See id. (adding subsection .270(a)(3)).

     35    See id. (adding subsection .490(3)).

     36    See ch. 132,  3, SLA 1988 (adding AS 08.18.028(a)).

     37     See  ch. 132,  8, SLA 1988 (amending AS 08.18.171  to
define a mechanical contractor).  Alaska Statute 08.18.171(8) was
renumbered  as  AS 08.18.171(7) in 1988 to maintain  alphabetical
order throughout the statutes.

     38    Ch. 132, SLA 1988.

     39    See S. Labor and Commerce Comm. Minutes, 15th Leg. 2d.
Sess.  (March  21,  1988) (comments of Randall  Burns,  Director,
Division of Occupational Licensing, Department of Commerce).

     40    Id.

     41     See H. Fin. Comm. Minutes, 15th Leg. 2d. Sess. (March
22,  1988)  (comments  of Eugene R. Rutland, Executive  Director,
Mechanical Contractors of Fairbanks).

     42     See Letter from Rep. Mark Boyer to All Members of the
House  of  Representatives, in H. Fin. Comm. File  for  H.B.  472
(April  28,  1988); Position Paper, Department  of  Commerce  and
Economic  Development, in H. Labor and Commerce  Comm.  File  for
H.B. 472 (March 22, 1988).

     43     Letter from George Utermohle, Legislative Counsel  to
Rep. Mark Boyer, in S. Labor and Commerce Comm. File for S.B. 487
(Dec. 8, 1987).  S.B. 487 was the companion bill to H.B. 472.

     44     Letter  from  Eugene R. Rutland, Executive  Director,
Mechanical  Contractors of Fairbanks, to Rep. Mark Boyer,  in  S.
Labor and Commerce Comm. File for S.B. 487 (Dec. 28, 1987).

     45    AS 08.40.490; AS 08.18.171(7).

     46    Letter from Rep. C.E. Swackhammer to Rep. Dave Donley,
H.  Labor  and  Commerce Comm., Request  for  a  House  Bill  368
Hearing, in H. Jud. Comm. File for H.B. 368 (Jan. 12, 1990).

     47    AS 18.56.300(b).

     48    AS 18.56.300(e)(3)(B).

     49     Rep.  C.E. Swackhammer, Sectional Analysis for  House
Bill 368, in H. Jud. Comm. File for H.B. 368 (Jan. 12, 1990).

     50     Letter  from Alaska Northern Chapter of International
Conference  of Building Officials to Rep. C.E. Swackhammer,  Ref.
An Act relating to residential housing assistance provided by the
Alaska  Housing  Finance Corporation, in H. Jud. Comm.  File  for
H.B. 368 (Dec. 6, 1989).

     51     Letter  from Jack Chenoweth, Legislative Counsel,  to
Rep.  C.E. Swackhammer, in H. Jud. Comm. File for H.B. 368  (Jan.
20, 1990).

     52    AS 18.56.300(e)(3)(A)-(D).

     53    See Chevron U.S.A., Inc. v. LeResche, 663 P.2d 923, 931
(Alaska  1983)  (holding that rule of construction that  specific
statutory  provisions control general ones should not be  applied
where provisions can be harmonized).

     54    AS 44.62.100; Chevron U.S.A., 663 P.2d at 929.

     55    See Turpin v. North Slope Borough, 879 P.2d 1009, 1013
(Alaska 1994).

     56    Id.

     57    Id. at 1013-14.

     58     The  state  did send a letter to the Municipality  of
Anchorage to clarify that the International Codes are the minimum
standards  for code compliance statewide, and it reiterated  that
under  13 AAC 50.075(a)(2) the state can delegate code compliance
authority  to municipalities only if local code standards  meet[]
or  exceed[]  the  states  regulations.  We  rejected  Mechanical
Contractorss motion to supplement the record with this letter, as
it  was not before the superior court when the court decided  the
case.  But even were the letter before us, it provides no support
for Mechanical Contractorss claim.  This letter is dated November
6,  2002,  more than a month after the trial court entered  final
judgment  in  favor of the state.  The Municipality of  Anchorage
had  already indicated in June 2000 that it intended to adopt the
IMC if the state moved to that standard.  The state did adopt the
IMC in 2001, and the municipality followed suit in January 2003.